

























































V 

THE CONSTITUTION AND 
GOVERNMENT OF TEXAS 

BY 

FRANK M. STEWART, Ph.D. 

FORMERLY PROFESSOR OF GOVERNMENT, UNIVERSITY OF TEXAS 

v AND 

JOSEPH L. CLARK, M.A. 

HEAD OF THE DEPARTMENT OF HISTORY AND GOVERNMENT, 

SAM HOUSTON STATE TEACHERS COLLEGE 



REVISED 



D. C. HEATH AND COMPANY 

BOSTON NEW YORK CHICAGO 

ATLANTA SAN FRANCISCO DALLAS 

LONDON 





Copyright, 1933, 

By D. C. Heath and Company ' 


No part of the material covered by this 
copyright may be reproduced in any form 
without written permission of the publisher. 

3 J 3 


PRINTED IN THE UNITED STATES OF AMERICA 


NOV -6 1933 / ( 

©CIA 66914 



PREFACE TO THE FIRST EDITION 


An act of the Texas Legislature places upon the educational in¬ 
stitutions of the State the duty of offering a course of instruc¬ 
tion in the Constitutions of the United States and of Texas. In¬ 
terest in the consideration of these documents, therefore, has been 
revived. Excellent treatises dealing with the Federal Constitution 
are available, but a usable college text treating specifically the 
Constitution of Texas has not been provided. To supply such a 
text has been the effort of the authors of this book. 

In order to understand the full significance of the Constitution, 
one should know how it came to be, its character, and the evolu¬ 
tion of its changes. Consequently, the first chapter of the book 
undertakes to give in brief summary the historical background of 
the present Constitution and to point out some of the most salient 
features of each of the six constitutions which were formulated 
by the people of Texas. In the second chapter suggestions are 
offered which it is hoped will be of value in further adapting 
our government to the rapidly changing conditions of the State. 
A study of the Constitution apart from the government operating 
under it offers small returns to the student. Part II, therefore, 
deals with the actual government under the Constitution and out¬ 
lines the organization, powers, and duties of the principal depart¬ 
ments of government and gives a brief survey of local government 
and the State’s relation to it. The text of the Constitution and 
selected readings are given in the Appendices. 

The authors wish to acknowledge with appreciation assistance 
rendered in the preparation of the manuscript by Messrs. V. O. 
Key, Jr., Leon G. Halden, and Cecil H. Tolbert, upon whom, 
however, none of the probable imperfections may be placed. 

F. M Stewart 
J. L. Clark 

University of Texas 
January, 1930 




PREFACE TO THE REVISED EDITION 


Since the publication of the first edition significant changes in 
legislative organization and procedure have been introduced by 
constitutional amendment, and important proposals for the re¬ 
organization of the administrative and judicial branches of the 
State Government, and of local government, have been made. 
These changes and proposals are discussed and other facts have 
been brought up to date. Three new chapters have been included: 
“State Finance,” “State Educational Administration,” and “Par¬ 
ties, Suffrage, and Elections.” Recent amendments to the Consti¬ 
tution have been added, and the copy of the document printed in 
the Appendix is taken from one which has been compared with 
the original Constitution and amendments in the Secretary of 
State’s office. The book is no longer divided into Parts, and the 
selected readings that appeared in the Appendices of the first 
edition have been omitted. 

A number of suggestions from teachers, editors, and public 
officials have been received and are gratefully acknowledged. The 
authors are under special obligation to Dr. Roscoe C. Martin and 
Miss Florence Spencer, of the University of Texas, and to Mrs. 
Roberta D. Stewart, for assistance in the work of revision. 

F. M. S. 

J. L. C. 


August , 1933 



CONTENTS 


CHAPTER p AGE 

I. The Development of the Constitution . i 

II. Amendment and Revision of the Constitution ... 18 

III. The State Legislature.34 

IV. The State Executive. 54 

V. State Administration. 74 

VI. State Finance.87 

VII. State Educational Administration. 100 

VIII. The State Judiciary. 111 

IX. Parties, Suffrage, and Elections.129 

X. Local Government. 145 

Constitution of the State of Texas, 1876 . . Appendix 


























CHAPTER I 

THE DEVELOPMENT OF THE CONSTITUTION 


The system of modern government, as it has come to be ac¬ 
cepted by enlightened peoples, involves a fundamental law—a con¬ 
stitution, which is “a law of a superior order and of a more per¬ 
manent character than legislative acts.” The chief purpose of such 
a law is security for the people against possible abuses on the part 
of those entrusted with the powers of government. 1 

Written constitutions of modern states usually consist of a pre¬ 
amble, including an enacting clause; a section describing the or¬ 
ganization of the government; another setting forth the powers 
of its branches and the duties of its officers; a bill of rights plac¬ 
ing limitations on these officers; and, lastly, a method of altering 
or amending the document itself. 2 These have been the char¬ 
acteristics of the six constitutions formulated by the people of 
Texas. 

THE MEXICAN PERIOD 

The constitutional history of Texas may be said to have begun 
with the promulgation of the National Mexican Constitution 
of 1824, which created a Mexican Federal Union modeled some¬ 
what on the plan of the government of the United States of 
America. The government which it created was divided into three 
departments—the executive with an elected president, the judi¬ 
ciary, and the legislative, which was bicameral. In theory the 
government was based on popular sovereignty and the functions 
of legislation were assigned to representatives of the people. The 
federal, government was supreme in national affairs, while the 
states were given the power to legislate with respect to local 
matters. Stephen F. Austin conferred with Mexican leaders who 
helped frame this government, but no representatives of the 

1 For a discussion of constitutions consult C. P. Patterson, American 
Government, rev. ed., Ch. XXXI (1933); W. F. Dodd, State Government, 
2ded, Ch. IV (1928). 

2 H. P. Judson, “The Essentials of a Written Constitution,” The Decen¬ 
nial Publications, University of Chicago, First Series, IV, 313 ff. (1903)* 


2 


GOVERNMENT OF TEXAS 


American colonists in Texas sat in the assembly which formulated 
the Constitution, and it was never submitted to the people for 
ratification. 3 

Under an act of May 7, 1824, Texas was joined temporarily 
with Coahuila to form a single state. In March, 1827, a Con¬ 
stitution for the State of Coahuila and Texas was promulgated. 
This instrument provided for a representative form of govern¬ 
ment, made liberal pronouncements of individual rights, and 
defined citizenship. It also placed restrictions on the institution 
of slavery and declared the Roman Catholic religion to be the 
religion of the State. Legislative power was vested in a unicameral 
Congress of twelve members, chosen for two years by an indirect 
method of election. 

In addition to the religion and slavery clauses, and the other 
objectional features which have been mentioned, the Constitution 
of 1827 provided that four-fifths of the legislators were to be 
chosen from the Mexican population of Coahuila; it made no pro¬ 
vision for trial by jury, and allowed many cases, both civil and 
criminal, to be decided by executive order. 4 

For nine years the Texans lived under this Constitution. Such 
laws as were enacted were printed in the Spanish language, with 
which but few of the colonists were familiar, and the political 
machinery for administering them was inadequate. 

The union with Coahuila was understood to be only temporary, 
the promise having been made that when conditions justified it 
Texas was to have a separate state organization. Instead of fulfill¬ 
ing this promise, however, the central government became more 
tyrannical. Dissatisfaction spread among the Texans, and a keener 
desire arose for a separate state government. 

THE PERIOD OF REVOLT 

This desire for fairer treatment led to the holding of a series 
of consultations, or conventions, of duly elected delegates. The 
first such convention ever held in Texas met at San Felipe de 
Austin in October, 1832. 5 At this meeting the delegates discussed 
the advisability of seeking separation from Coahuila, yet remain- 

3 “In spite of their political incapacity—or perhaps because of it—the 
Mexicans, after several false starts, declared in 1823 for the most complex 
form of government ever devised by man, and the next year promulgated 
the federal republican constitution of 1824.” E. C. Barker, Mexico and Texas, 
1821-1835, 2 (1928). 

4 H. P. N. Gammel, The Laws of Texas, I, 423-453 (1898). 

5 Ibid., 477 - 503 * 


DEVELOPMENT OF THE CONSTITUTION 


3 


ing one of the states of the Mexican federation. At a second meet¬ 
ing held at the same place in April, 1833, a Constitution for the 
proposed State of Texas was drawn up and a petition was formu¬ 
lated requesting its adoption by the Mexican authorities. 6 A com¬ 
mission was appointed to lay these matters before the central 
government, but no relief was secured by the Texans through this 
effort. 

In October, 1835, delegates to a third consultation were called 
to San Felipe de Austin. At this meeting formal resolutions were 
drawn up charging Santa Anna and other military chieftains with 
having overthrown, by force of arms, the federal institutions of 
Mexico and with having “dissolved the Social Compact which ex¬ 
isted between Texas and other Members of the Mexican Con¬ 
federacy.” The delegates declared that the Texans had been forced 
to take up arms in defense of their rights and liberties and of the 
republican principles of the Federal Constitution of Mexico of 
1824. 7 

The Texans did not at this time make a formal declaration of 
independence, but they stated it as their right, during the disor¬ 
ganization of the federal system and the reign of despotism in 
Mexico, “to withdraw from the Union, to establish an inde¬ 
pendent Government,” adding that they would continue faithful 
to the Mexican Government so long as that nation was governed 
by “the Constitution and Laws that were formed for the govern¬ 
ment of the Political Association.” 8 

On November 13 a Provisional Government was created. It 
consisted of a General Council, composed of one member from 
each of the municipalities represented in the Convention, a Gov¬ 
ernor, a Lieutenant-Governor, and a provisional judicial system. 
The English common law was adopted, with trial by jury specified, 
and steps were taken to protect individuals in their land titles. An 
army was created and Sam Houston was appointed commander- 
in-chief. Fighting had taken place on Texas soil, and Santa Anna 
was known to be advancing with a strong military force. A conven¬ 
tion was therefore called to meet March 1, 1836, at the town of 
Washington. 

6 The proposed Constitution of 1833 is printed in D. B. Edward, The 
History of Texas, 196 (1836). 

7 John Sayles, The Constitutions of the State of Texas, 4th ed., 137 (1893) ; 
Gammel, op. cit., 551-813. 

8 Sayles, op. cit., 138. 


4 


GOVERNMENT OF TEXAS 


THE CONSTITUTION OF 1836 

On March 2 the delegates made a formal Declaration of In¬ 
dependence, proclaiming the Republic of Texas and enumerating 
the causes which impelled them to this action. 9 Among these causes 
for separation they cited denial of trial by jury, denial of freedom 
of worship, failure to provide for public education, and the oppres¬ 
sion of a tyrannical government. 

As indicated in this declaration, there was deeper discontent 
than that which sprang from recent events. Historical and cul¬ 
tural differences between the American colonists and the Mexi¬ 
cans made inevitable a conflict of civilizations. The colonists were 
characterized by aggressiveness and independence of action which 
had enabled their forefathers to conquer the wilderness. They 
were devoted to the Anglo-Saxon culture of their ancestors, but 
were strangers to the Latin culture of Mexico. A Mexican official 
writing to President Victoria about the Texans said in 1828: 
“[They] travel with their political constitution in their pockets, 
demanding the privileges, authority, and officers which such a con¬ 
stitution guarantees.” 10 Above all, many of the Texans hated the 
religious restrictions which had been placed upon them, and they 
had become disgusted with the pretense of popular government 
in Mexico. 

After the adoption of the Declaration of Independence the 
delegates assembled as a constitutional convention, and by the six¬ 
teenth of the month they had formulated what is known as the 
Constitution of the Republic of Texas. This document was signed 
on March 17 by Richard Ellis, President of the Convention and 
delegate from Red River, Albert H. S. Kimble, Secretary, and by 
fifty-six other delegates. 11 Pending the result of war, a government 
ad interim was set up with David G. Burnet as President. On the 
first Monday in the following September, after the victory of San 
Jacinto, the Constitution was ratified by popular vote. 

With this action Texas started on the second phase of consti¬ 
tutional development. In doing this, however, the framers of the 
Constitution of 1836 did not produce an original fabric but set 

9 Sayles, op. cit., 151-154; Gammel, op. cit., 1063-1067. 

10 General Manuel Mier y Teran to President Guadalupe Victoria, June 
30, 1828, quoted in E. C. Barker, op. cit., 4. 

n Sayles, op. cit., 155 - 175 ; Gammel, op. cit., 1069-1085; R. N. Richardson, 
“Framing the Constitution of the Republic of Texas,” Southwestern His¬ 
torical Quarterly, XXXI, 191-220 (1928), reprinted in part in E. C. Barker, 
Readings in Texas History, 246-261 (1929). 


DEVELOPMENT OF THE CONSTITUTION 


5 


up a republican form of government similar to the one with which 
they were the most familiar. They made the Texas government 
unitary, however, instead of federal, with legislators elected from 
districts rather than from sovereign states, as in the government 
of the United States. 

The Constitution of the Republic of Texas contained a division 
of powers among the legislative, executive, and judicial branches 
of the government. The Congress was bicameral. Members of the 
lower house were chosen annually by districts from among citizens 
who had attained the age of twenty-five years and who had re¬ 
sided at least six months in the county from which they were 
elected. That body was never to exceed forty in number. Senators 
were to have reached the age of thirty years. They were chosen 
by districts according to population and served three years, one- 
third retiring annually. Their number was never to be less than 
one-third nor more than one-half the number of the lower house. 
Their compensation was to be fixed by law. 

The chief executive was the President, elected by direct vote. 
His term of office was three years, and he was ineligible for two 
terms in succession. His powers and duties followed closely those 
of the President of the United States. He must have attained the 
age of thirty-five years. His salary was fixed by Congress. 

The judicial system consisted of a Supreme Court and such in¬ 
ferior courts as Congress might establish. The Supreme Court was 
composed of the Chief Justice and the district judges, who consti¬ 
tuted the associate judges. The Chief Justice of the Supreme Court 
and the district judges were elected by joint ballot of both houses 
of Congress. They held office for four years and were eligible for 
reelection. The Constitution provided that as early as practicable 
Congress was to introduce by statute the common law of England, 
which should be the rule of decision in all criminal cases. 

A section of this Constitution defined as citizens “All persons 
(Africans and descendants of Africans and Indians excepted), 
who were residing in Texas on the day of the Declaration of In¬ 
dependence.” It provided for the naturalization of foreigners, 
legalized the institution of slavery, and prohibited the passing of 
any law against emigrants bringing their slaves into the Republic. 
Congress was given the power to create a system of education. A 
land commission was provided to settle disputed questions of title 
which had arisen during the period of unrest and revolution. The 
Anglo-American’s jealousy of individual liberty and personal rights 


6 


GOVERNMENT OF TEXAS 


was reflected in a “Declaration of Rights,” reserving to the people 
“everything in this bill of rights contained, and every other right 
not hereby delegated.” 

A complicated method of changing the Constitution provided 
that an amendment might be proposed by either house of Congress, 
and when agreed to by a majority of both houses it should be en¬ 
tered upon the journals, referred to the next Congress, and pub¬ 
lished for three months previous to the election. If the amendment 
passed the next Congress by a two-thirds vote, it should then be 
submitted to the people. If it received a majority vote, the amend¬ 
ment should become a part of the Constitution. No amendment 
might be referred to the people oftener than once in three years. 

THE CONSTITUTION OF 1845 

In September, 1836, when the citizens of Texas ratified the 
Constitution of the Republic they voted also on the question of 
annexation to the United States. At that time there were only 
ninety-one negative votes. Annexation was not accomplished, how¬ 
ever, until 1845, owing to several factors, some domestic and others 
national. In 1845 a Constitution was drawn up, ratified by the peo¬ 
ple, and submitted to the Congress of the United States. On De¬ 
cember 29, 1845, it was accepted by that body in a joint resolution 
which declared that the State of Texas should be admitted into the 
Union on an equal footing with the original states. 

Meanwhile, State officials had been elected as provided in the 
new Constitution. On February 16, 1846, they were inducted into 
office, making complete the change from Republic to State. 12 

The convention which drafted the Constitution of 1845 has been 
called “the ablest political body that ever assembled in Texas.” 
The Constitution drafted by it was pronounced by some of Ameri¬ 
ca’s greatest authorities as the best state constitution of the time, 
and it has been asserted that Texas could well afford to return to 
the government which it set up. 13 

12 In the annexation agreement, Texas recognized the right of the United 
States to adjust boundary disputes which might arise with other govern¬ 
ments, and ceded to the United States all public edifices, fortifications, bar¬ 
racks, the navy, navy yard, arms, armaments, and other means of defense. 
Texas retained all public funds, public lands, and taxes, and was to pay her 
own debts. It was further agreed that with the consent of Texas four addi¬ 
tional states might be made from her territory, any new states thus formed to 
be organized with respect to slavery on the principle established in the 
Missouri Compromise of 1820. 

13 For a fuller treatment of this period of the political history of Texas, 
see Annie Middleton, “Donelson’s Mission to Texas in Behalf of Annexa- 


DEVELOPMENT OF THE CONSTITUTION 


7 


The document was nearly twice as long as the Constitution of 
1836, owing to the addition of new provisions. The general plan 
of governmental organization was similar to that of the Republic. 
Few changes were made in the bill of rights. The chief executive 
became the Governor and many of the powers of the former Presi¬ 
dent of Texas were transferred to the President of the United 
States. The Governor was elected for two years, with an annual 
salary of $2,000, and he was ineligible for election for more than 
four years in six. He was commander-in-chief of the militia and 
could convene the Legislature and adjourn it in case of disagree¬ 
ment between the two houses. He appointed the Secretary of State, 
could grant pardons and reprieves, and continued to possess the 
veto power. The Lieutenant-Governor took the place of the Vice- 
President. 

The legislative branch of government continued bicameral in 
organization with biennial sessions. Representatives were elected 
for two years and must have attained the age of twenty-one years. 
Senators were elected for four years, one-half to be chosen bien¬ 
nially, and must have attained the age of thirty years. The salary 
of legislators was three dollars a day and three dollars for every 
twenty-five miles’ traveling to and from the seat of government, 
that distance being an estimated day’s journey. It was provided 
that a census for reapportionment should be taken every eight 
years, and that the number of Representatives should never be less 
than forty-five nor more than ninety, while the number of Sena¬ 
tors should never be less than nineteen nor more than thirty-three. 
The first Legislature consisted of sixty-six Representatives and 
nineteen Senators. 

The judicial power of the State was vested in a Supreme Court, 
in district courts, and in such other inferior courts as the Legisla¬ 
ture might establish. The Supreme Court consisted of three judges. 
These judges and those of the district courts were appointed by 
the Governor, two-thirds of the Senate concurring, for a term of 
six years with a salary of not less than $2,000 for Supreme Court 
judges and $1,750 for district judges. Both Supreme Court and 
district court judges could be removed by the Governor on address 
of two-thirds of each house of the Legislature for cause which was 
not sufficient ground for impeachment. 


tion,” Southwestern Historical Quarterly, XXIV, 247-291 (1921), and “The 
Texas Convention of 1845,” ibid., XXV, 26-62 (1921). These articles are 
reprinted in part in E. C. Barker, Readings in Texas History, 375-393 (i 9 2 9 ). 



8 


GOVERNMENT OF TEXAS 


The Attorney-General likewise was appointed by the Governor 
and the Senate for a period of two years with a salary to be fixed 
by law. A singular provision required that a district attorney for 
each district should be elected by a joint vote of both houses of the 
Legislature to serve for two years with a salary to be fixed by law. 
County officers, including a sheriff, justices of the peace, con¬ 
stables, and a coroner were elected for two years. 

Article seven of this Constitution, entitled “General Provisions,” 
was the longest division of the document. Most of its thirty-six 
sections were restrictions on the Legislature. A noteworthy clause 
permitted the private ownership by married women of “All prop¬ 
erty, both real and personal,” owned before marriage or acquired 
afterwards by gift or inheritance. There was another provision 
exempting from forced sale the homestead of a family, not to ex¬ 
ceed two hundred acres of land or city property not exceeding two 
thousand dollars in value. 

A short article on education declared it the duty of the Legis¬ 
lature to make suitable provisions for the support and mainte¬ 
nance of public schools. Ten per cent of the State’s revenue was 
to be set aside as a perpetual school fund. The General Land Office 
was continued in operation. 

As was to be expected, slavery was legalized and the Legisla¬ 
ture was prohibited from emancipating slaves without the consent 
of and compensation to the owners. Neither could a law be passed 
prohibiting emigrants to the State from bringing their slaves with 
them. The State debt should never exceed one hundred thousand 
dollars, except in case of war, invasion, or insurrection, and no 
loan should ever be made except by vote of two-thirds of both 
houses of the Legislature. 

The method of amending the Constitution provided that two- 
thirds of each house could propose an amendment, such an amend¬ 
ment to be published at least three months before the next general 
election of Representatives, and to be voted on by the people at 
such election. If a majority of all citizens of the State, voting for 
Representatives, voted for such amendment, and two-thirds of each 
house of the next Legislature should, after such election, ratify 
the same, it should become a part of the Constitution, provided that 
on each proposal in each house in each of the sessions at which it 
was considered readings were had on three separate days. 

The only amendment which the Constitution received under this 
provision was approved January 16, 1850. It provided that judges 


DEVELOPMENT OF THE CONSTITUTION 9 

of the Supreme Court, judges of the district courts, the Attorney- 
General, district attorneys, the Comptroller, the State Treasurer, 
and the Commissioner of the General Land Office should be 
elected by direct vote and that district judges and district attorneys 
should be chosen within their respective districts. 14 

THE CONSTITUTION OF 1861 

For fifteen years Texas lived under the Constitution of 1845. 
During the latter part of that period a great deal of confusion 
arose over the powers of the states under the Federal Constitu¬ 
tion and over the question whether a state had a constitutional 
right to secede from the Union. On January 18, 1861, an extra- 
legal convention assembled in Austin, pursuant to a call issued by 
a number of prominent citizens, all of whom favored secession 
from the Union. 

On February 1 this convention passed an ordinance repealing 
the ordinance of annexation of July 4, 1845, and passed ordinances 
ratifying the Constitution of the Confederate States of America 
and requesting admission to the Confederation. The Constitution 
of 1845 was amended by the convention through the addition of 
appropriate clauses and the elimination of provisions made obso¬ 
lete by the change of allegiance. The first clause inserted in the 
amended document embodied the extreme state rights doctrine in 
the following words: . . no government or authority can exist 

or exercise power within the State of Texas, without the consent 
of the people thereof previously given; nor after that consent be 
withdrawn.” 15 

In the amended Constitution “Confederate States of America” 
was substituted for “United States of America,” conditions of 
citizenship in Texas were made to conform to secession require¬ 
ments, and it was stipulated that all officials should take oath to 
support the Constitution of the Confederacy “as long as the State 
shall remain a member of the Confederation.” Slavery was em¬ 
phasized by eliminating the emancipation provision of the Con¬ 
stitution of 1845, the freeing of slaves being denied to both the 
Legislature and the master. 

After conferring on the Legislature power to call a convention, 
and declaring that all laws not repugnant to the Constitution of 

14 For the Constitution of 1845, with appended ordinances, see Sayles, 
op. cit., 185-224. The amendment appears on page 222. See also Gammel, 
op. cit., II, 1275-1302. 

15 Sayles, op. cit., 225. 


10 


GOVERNMENT OF TEXAS 


the Confederate States or to that of the State of Texas should 
remain in effect until they expired or were repealed, the conven¬ 
tion adjourned on March 25. 16 

The amended Constitution of 1845, changed to meet the condi¬ 
tions growing out of secession and civil war, is called the Con¬ 
stitution of 1861. It was superseded by the Constitution of 1866, 
formed after the downfall of the Confederacy. 

THE CONSTITUTION OF 1866 

The last battle of the Civil War was fought near Brownsville, 
Texas, May 13, 1865. Since the Southern States lost the war it 
became necessary for the people of Texas again to make their Con¬ 
stitution conform to that of the United States. On February 7, 
1866, a convention met in Austin for that purpose. An ordinance 
was adopted declaring null and void the ordinance of secession and 
acknowledging the supremacy of the Constitution of the United 
States. Another ordinance repudiated all debts made by Texas in 
promoting the war, and prohibited the State Legislature from pay¬ 
ing any of the debts made by the Confederacy. Slavery was abol¬ 
ished, and it was stipulated that the freedmen should be protected 
in their rights of person and property by appropriate legislation, 
with the right to contract, acquire, and transfer property, to sue 
and to appear in court as witnesses. The Constitution of 1845 was 
readopted with certain changes, and in its changed form was ac¬ 
cepted by the people on the last Monday in June. 

By these alterations, the Governor’s tenure of office was ex¬ 
tended to four years and his salary was raised to $4,000 a year. 
A census and reapportionment of Representatives was to be had 
every ten years. The number of Representatives was to be be¬ 
tween forty-five and ninety, and the number of Senators between 
nineteen and thirty-three. The compensation of legislators re¬ 
mained at eight dollars a day and eight dollars for each twenty- 
five miles traveled. The Supreme Court was increased from three 
judges to five with a ten-year tenure at a salary of $4,500 a year. 
Three judges constituted a quorum of the court. The Attorney- 
General was to serve four years with an annual salary of $3,000. 
District judges were to be elected by the people for eight years and 
were to receive an annual salary of not less than $3,500. A dis- 

18 For the Constitution of 1861, and appended ordinances, see Sayles, op. 
cit., 225-276; Gammel, op. cit., V, 1-27. For an account of the secession move¬ 
ment in Texas, see C. W. Ramsdell, Reconstruction in Texas, Ch. I (1910). 


DEVELOPMENT OF THE CONSTITUTION 11 

trict Etorney and a district clerk were to be elected for each judi¬ 
cial cktrict. County courts were created, and provision made for 
the elction of county officials. 

A ystem of internal improvement was outlined. A more elabo¬ 
rate sstem of public education provided for the appointment by 
the Gvernor of a Superintendent of Public Instruction and cre¬ 
ated idBoard of Education, consisting of the Governor, the Comp¬ 
troller and the Superintendent of Public Instruction. The Consti- 
tutionset aside public lands for the support of the public school 
syster and for the creation and endowment of a university and 
for tb support of institutions for the deaf, dumb, blind, and in¬ 
sane 6 the State. It conferred power on the Legislature to levy a 
schootax, especially stipulating that all taxes collected from Ne- 
groeshould be used in maintaining schools for Negroes. 17 

Th Legislature, on a two-thirds vote, could call a convention 
and k the time and place of meeting. The method of amending 
the Gnstitution remained unchanged. What was needed to give 
Texarcomplete political reconstruction was the removal from her 
hordes of the United States troops and the seating of her repre¬ 
sentatives in the national Congress. But before these two things 
were ccomplished the radical element in Congress got control and 
put iro operation the Congressional Plan of Reconstruction. 

THE CONSTITUTION OF 1869 

In le opinion of those who had assumed leadership in Congress, 
Texadiad not been sufficiently punished for her part in the war. 
To aminister this punishment, they tightened the military power 
upon he State, removed Throckmorton and all other civil officers 
fronpower, and prescribed the “Iron-Clad Oath/’ which disfran¬ 
chise those who had participated in the “late rebellion.” They 
placedhe government largely in the hands of the “carpetbaggers,” 
the “salawags,” and the recently enfranchised Negroes. 

Urier military domination, another convention was called to 
meet n Austin to frame a constitution which would conform to 
the rquirements of the radical leaders of Congress. This Recon¬ 
struct Convention, as it is called, lasted, with intermittent ses¬ 
sions from June i, 1868, to February 6, 1869. It spent a hundred 

17 F© the system of education provided in the Constitution of 1866 see 
Saylesc>/>. cit., 327-330. The Constitution as amended, with ordinances, will 
be foud ibid., 299-354; Gammel, op. cit., V, 855-885. See also Ramsdell, 
op. cit.Ch. V. 


12 


GOVERNMENT OF TEXAS 


thousand dollars, and finally dispersed without formally complet¬ 
ing, dating, or signing the document which had been drawn up. 18 

Despite these and many other irregularities, the document was 
ratified by a restricted electorate under supervision of military 
authorities. It is known as the Constitution of 1869. Under it 
E. J. Davis was elected Governor and other officials were chosen. 

The political convictions of those who were in control in Texas 
are indicated by the first clause of the bill of rights of the Consti¬ 
tution of 1869, which read: “That the heresies of nullification and 
secession, which brought the country to grief, may be eliminated 
from future political discussion ... we declare . . . the Consti¬ 
tution of the United States ... to be the supreme law; that this 
Constitution is framed in harmony with and in subordination 
thereto, . . . and can only be changed, subject to the national 
authority.” 

Few changes were made in the general organization of govern¬ 
ment. The Governor’s salary was raised to $5,000; the number of 
Representatives was limited to ninety and Senators to thirty. The 
Supreme Court was reduced from five to three judges, all judicial 
officials were again made appointive, and all elections were to be 
held at the county seat and were to continue from eight o’clock in 
the forenoon until four o’clock in the afternoon through four con¬ 
secutive days. 

The Constitution of 1869 declared that the free school system 
should receive the interest on a permanent fund made up of all 
receipts from public lands, one-fourth of the annual taxes, and all 
receipts from the poll tax. The office of Superintendent of Public 
Instruction was continued and his duties were defined. There was 
also a compulsory school attendance provision. 

The first Legislature which met under this Constitution de¬ 
clared all laws and ordinances passed while Texas was a member 
of the Confederacy to be null and void. The war debts were again 
repudiated, and the thirteenth and fourteenth amendments to the 
Federal Constitution were ratified. Negroes were enfranchised, 
while the disabilities of the disfranchised whites could be removed 
only by the national authorities. This is, in general, the most poorly 
constructed of the Texas Constitutions. 

In the congressional election of 1871 the Davis party received 
a severe blow when a Democratic delegation was chosen. The fol- 

18 Sayles, op. cit., 377-469; Gammel, op. cit., VII, 393-430. See also Rams- 
dell, op. cit., Ch. IX. 


13 


DEVELOPMENT OF THE CONSTITUTION 

lowing year a majority of anti-Davis men were elected to the Leg¬ 
islature. That body then repealed many of the objectionable laws 
over the Governor’s veto. Among those repealed was the law re¬ 
quiring elections to be held for four days at the county seat. In the 
gubernatorial election of 1873 Davis was defeated by Judge Richard 
Coke, a former Confederate officer and the nominee of the Demo¬ 
crats. Governor Davis contested the election, and though the fa¬ 
mous “semi-colon” decision of the Supreme Court was in his favor, 
he was forced to retire from office. 

THE CONSTITUTION OF 1876 

One of the first problems confronting the Coke administration 
was created by a demand for the revision of the Constitution of 
1869. In view of the fact that the Democratic State convention had 
demanded a constitutional convention in 1873, the Governor ad¬ 
vised early consideration of the matter. As this demand became 
more insistent the question arose as to the best method of revision. 
Some said it should be done by amendments to be proposed to the 
people by the Legislature; others advocated a complete redrafting 
of the Constitution by a convention called for that purpose. 

As time passed another question presented itself. This was em¬ 
bodied in a resolution introduced in the Legislature on March 5, 
1874, by C. M. Winkler providing for a Commission of nine men 
to “thoroughly revise, harmonize, and systematize” the document 
so as to present “an entire and complete” Constitution, which, 
upon completion, would be submitted to the voters of the State by 
the Governor for ratification or rejection. This idea was not 
adopted, however, and on March 16, 1874, Governor Coke rec¬ 
ommended in a message to the Legislature that a joint committee 
be appointed to prepare and recommend to the people “an instru¬ 
ment of organic law, complete in all its parts.” The so-called Camp- 
Sayers Committee was appointed, and though its recommendations 
were highly commended, they were not submitted by the Legisla¬ 
ture to the voters. 

It became apparent that public sentiment was favorable to the 
convention method of changing the Constitution. Consequently in 
his message to the second session of the Fourteenth Legislature on 
January 12, 1875, Governor Coke recommended the calling of a 
constitutional convention. Pursuant to this recommendation, a reso¬ 
lution was introduced proposing a convention to meet in Austin 
the first Monday in May, the delegates to number one hundred and 


14 


GOVERNMENT OF TEXAS 


twenty, being three from each of the thirty senatorial districts and 
thirty from the State at large. Much debate followed. Fear was 
expressed as to the attitude of the Federal Government toward 
the rewriting of the Texas Constitution, some expressing appre¬ 
hension of the return of military government in the State if such 
was undertaken. In the final form of the resolution as approved 
by the Governor, a convention was called to meet in Austin on the 
first Monday in September, 1875. This convention was to be com¬ 
posed of ninety delegates, three to be elected on the first Monday 
in August from each senatorial district. 

This was accordingly done. Of the delegates chosen, one had 
been a member of the convention of 1845; eight had been members 
of the convention of 1861; and one had sat in the convention of 
1866. Many of them, however, had had experience in legislative 
and other deliberative bodies and were worthy of the task entrusted 
to them. In view of happenings of the immediate past it was not 
surprising that the instrument which they wrote showed marked 
reaction to the experiences through which the people had gone 
under “carpetbag” rule. Instead of referring to the “heresies of 
nullification and secession,” as in the Constitution of 1869, the 
document of 1876 declared Texas to be a “free and independent 
State subject only to the Constitution of the United States,” and 
asserted that the maintenance of free institutions and the per¬ 
petuity of the Union depend upon the preservation of the right of 
local self-government, and that all political power is inherent in 
the people. The military power was declared to be subordinate to 
the civil authority, and the bill of rights was pronounced inviolate. 

In further contrast to the instrument of 1869, which permitted 
the suspension of the writ of habeas corpus, the Constitution of 
1876 declared that it might “never be suspended.” It provided also 
for biennial sessions of the Legislature instead of annual sessions, 
as in 1869. Heated debate occurred in the convention upon the 
number of members of the two houses and their powers. As finally 
adopted, the instrument provided for a Senate of thirty-one mem¬ 
bers, while the number in the House might be increased with the 
growth of population, in the ratio of not more than one Repre¬ 
sentative to each fifteen thousand inhabitants, up to one hundred 
and fifty members. The Legislature was to meet in regular session, 
and in special sessions of thirty days’ duration upon the Governor’s 
call. The salary of legislators was reduced from eight dollars a day 
to five dollars a day for the first sixty days of the regular session 


DEVELOPMENT OF THE CONSTITUTION 15 

and two dollars a day for the remainder of the session. There was 
a mileage allowance of twenty cents as against thirty-two cents in 
1869. 

In considering the executive department the arguments in the 
convention centered around the questions of salary and length of 
tenure. As at first presented to the convention the salary of the 
Governor would have remained at $5,000, that of the Attorney- 
General at $2,000, with certain fees, that of the Secretary of State 
at $2,000, and that of the Treasurer, the Comptroller, and the 
Commissioner of the General Land Office at $2,500 each. The 
Granger element among the delegates attempted to place salaries be¬ 
low this scale. There was an unsuccessful effort also to eliminate the 
office of Attorney-General. In its final form, these offices and sal¬ 
aries were retained, with exception of the Governor’s salary, which 
was fixed at $4,000, and the term of office of all of them at two 
years. All executive officers were made elective by the people 
except the Secretary of State, who was to be appointed by the 
Governor. 

The operation of the judiciary under the Constitution of 1869 
had been especially disagreeable to the people. Specific changes 
were therefore made. As finally adopted, the judiciary article pro¬ 
vided for a Supreme Court of three members, a Court of Criminal 
Appeals of three judges, Courts of Civil Appeals in each of the 
several districts as created by the Legislature, district courts, county 
courts, justices’ courts, commissioners’ courts, “and such other 
courts as may be established by law.” There was a general reduction 
in the salaries of judges. 

In the matter of suffrage, reaction to restriction under the Con¬ 
stitution of 1869 was evident. Aliens who had declared their in¬ 
tention to become citizens were permitted to vote. In city elections 
it was provided that only taxpayers could vote to determine the 
issuance of bonds or the expenditure of public money. Return to 
precinct elections was provided, and the registration of voters was 
never to be permitted. 

The office of State Superintendent of Public Instruction was 
abolished and the duties of that office given to a Board of Educa¬ 
tion composed of the Governor, the Comptroller, and the Secre¬ 
tary of State. No compulsory law was permitted, and separate 
schools were required for white and Negro children. State Uni¬ 
versity lands, as provided in earlier constitutions and laws, were 
reduced from 3,200,000 acres to 1,000,000 acres, and it was stipu- 



16 


GOVERNMENT OF TEXAS 


lated that no tax should be levied or appropriations made for the 
purpose of erecting buildings for the University of Texas. 

In the section of the Constitution entitled “General Provisions,” 
the Legislature was forbidden to make appropriations for private 
or individual purposes or for internal improvements. City, pre¬ 
cinct, or county option with respect to the sale of intoxicating 
liquors was permitted, and the Legislature was allowed to pro¬ 
hibit the sale of such liquors in the vicinity of colleges, provided 
they were not located at the county seat. The city of Austin was 
made the capital of the State and three million acres of the public 
domain were set aside for the erection of a new capitol. The home¬ 
stead provisions remained in the Constitution, and household and 
kitchen furniture to the value of two hundred and fifty dollars 
was exempted from taxation, as was also all property used for 
charitable, educational, or religious purposes. Certain privileges 
were granted to railroad companies, they were designated as com¬ 
mon carriers, and regulations were fixed under which they might 
operate in this State. The procedure was outlined for creating and 
organizing new counties and for locating or changing the county 
seat. It was provided that municipal and private corporations 
should be created and regulated by general laws. 

The method of amending the Constitution was simplified by 
permitting the Governor to proclaim a proposed amendment after 
it had received a majority vote of the electorate without the action 
of a new Legislature. No provision was made for the calling of 
another constitutional convention. 19 

REFERENCES 

Chapters on the state constitution may be found in C. P. Patterson, 
American Government, rev. ed. (1933), and in the other standard texts 
on American government by Beard, Munro, Ogg and Ray, Kimball, 
Haines and Haines, Martin and George, and Young. H. P. N. Gammel, 
The Laws of Texas, 1822-1897 (1898), is a compilation of constitutions 
and legislative acts in ten volumes. John Sayles, The Constitutions of 
Texas, 4th ed. (1893), contains, in addition to the Texas Constitutions, 
the Constitution of the United States and the Constitution of the 

19 The Constitution of 1876, with ordinances passed by the convention, is 
printed in Sayles, op. cit., 499-603, and Gammel, op. cit., VIII, 779-834. 
The most scholarly discussion of that document is Making the Texas Con¬ 
stitution of 1876, by S. S. McKay (1924). A scintillating critical article on 
the Constitution is “Mysticism, Realism, and the Texas Constitution of 
1876,” by S. D. Myres, Jr., in the Southwestern Political and Social Science 
Quarterly, IX, 166-184 (1928). 


DEVELOPMENT OF THE CONSTITUTION 


17 


Confederate States, together with other valuable materials. The most 
comprehensive secondary source for all phases of Texas history is the 
Southwestern Historical Quarterly, of which thirty-five volumes have 
been published. The Southwestern Social Science Quarterly, of which 
thirteen volumes have been issued, contains much material helpful in 
the study of Texas political history and government. 

The best single volume of reference material on the history of Texas 
is E. C. Barker, Readings in Texas History (1929). The causes of the 
Texas Revolution are treated by Dr. Barker in his Mexico and Texas, 
1821-1835 (1928). An excellent discussion of the historical background 
of the Constitution is S. S. McKay, Making the Texas Constitution 
of 1876 (1924). His Debates in the Constitutional Convention of 
1875 has been recently published by the University of Texas Press. 
Political conditions in the State during reconstruction are described and 
accounts of the constitutional conventions of 1866 and 1868-1869 are 
given in C. W. Ramsdell, Reconstruction in Texas (1910). A valuable 
analysis of the bill of rights in Texas Constitutions is given in John 
Robert Anthony, The Bill of Rights in Texas (Master’s Thesis, Univer¬ 
sity of Texas, 1928). C. D. Judd and C. V. Hall, The Texas Constitu¬ 
tion: Explained and Analyzed (1932), Chs. I, II, III, discuss the 
background and characteristics of the present Constitution and the 
bill of rights. The text of the Constitution of 1876 with amendments to 
date is printed in the Appendix of the present text. The Constitution, 
with annotations, may be found in Vernon’s Annotated Revised Civil 
Statutes of the State of Texas (1927). 


CHAPTER II 

AMENDMENT AND REVISION OF THE CONSTITUTION 


The difference between amendment and revision of a constitu¬ 
tion is only one of degree. Amendment involves relatively few 
changes in, or additions to, the existing document, while revision 
consists in the drafting and adoption of a new, or practically new, 
constitution. Amendment may be accomplished in the following 
ways: (i) proposal by the legislature and acceptance by the people 
at an election; (2) proposal by a constitutional convention and 
adoption by the voters at the polls, which is the only method fol¬ 
lowed in New Hampshire; (3) amendment by the legislature with¬ 
out reference to the people, which method is used in Delaware; 
and (4) by the initiative and referendum, either with or without 
legislative approval at some step in the process. Revision of a con¬ 
stitution is effected by completely redrafting the existing consti¬ 
tution or by the adoption of a series of amendments changing en¬ 
tirely the character of the' document, and is usually done by a 
constitutional convention. 

Since the Texas Constitution does not provide for the revision 
of the document by a constitutional convention, the amendment of 
the Constitution will be considered first. 

AMENDMENT OF THE CONSTITUTION 

Constitutional Provision .—The mode of amending the Texas 
Constitution is set out in the final article of the document, which 
reads as follows: 

The Legislature, at any biennial session, by a vote of two-thirds of 
all the members elected to each House, to be entered by yeas and 
nays on the journals, may propose amendments to the Constitution, to be 
voted upon by the qualified electors for members of the Legislature, 
which proposed amendments shall be duly published once a week for 
four weeks, commencing at least three months before an election, the 
time of which shall be specified by the Legislature, in one weekly news¬ 
paper of each county, in which such a newspaper may be published; 
and it shall be the duty of the several returning officers of said election, 

18 


AMENDMENT AND REVISION 


19 


to open a poll for, and make returns to the Secretary of State, of the 
number of legal votes cast at said election for and against said 
amendments; and if more than one be proposed, then the number of 
votes cast for and against each of them; and if it shall appear from 
said return, that a majority of the votes cast, have been cast in favor of 
any amendment, the said amendment so receiving a majority of the 
votes cast, shall become a part of this Constitution, and proclamation 
shall be made by the Governor thereof. 1 

Only Regular Sessions May Propose Amendments. —The At¬ 
torney-General has ruled that “biennial session” in the foregoing 
article means the regular session of the Legislature held every two 
years as provided in Article III, section 5 of the Constitution, and 
hence amendments can be submitted to the people only by a regu¬ 
lar session. 2 Furthermore, a subsequently called session of the 
Legislature can not change the date for election on a constitutional 
amendment set by the regular session. The regular session of the 
Thirty-sixth Legislature proposed an amendment to be voted upon 
in November, 1920. It later developed that November, 1919, would 
be a more desirable time to vote upon the amendment. In view of 
the constitutional requirement that amendments be submitted by 
a regular session, the question arose as to whether it would be pos¬ 
sible for a called session to change the date of the election from 
November, 1920, to November, 1919. In advising against such a 
change the Attorney-General said: “. . . it is apparent that only 
a Regular Session of the Legislature may propose amendments to 
the Constitution, and that in proposing such amendments the Regu¬ 
lar Session itself must ‘specify’ the time when such amendments 
are to be voted upon.” 3 

Publication of the Proposed Amendment. —The constitutional 
requirement that a proposed amendment shall be published once a 
week for four weeks commencing at least three months prior to 
the election is interpreted as mandatory by the Attorney-General. 
In 1923 the Thirty-eighth Legislature submitted to the people an 
amendment pertaining to State highways, providing that it should 
be voted upon on the fourth Saturday in July, 1923. The Secretary 
of State failed to mail out the resolution to the newspapers early 
enough for it to be published in keeping with the constitutional 
requirements, less than two months remaining between the date of 
the first publication and the time for the election. Under such cir- 

1 Constitution, Art. XVII, sec. 1. 

2 Biennial Report of the Attorney-General, 151-152 (1918-1920). 

s Ibid., 153- 


20 


GOVERNMENT OF TEXAS 


cumstances had the amendment been legally submitted? Would 
the failure to publish the proposed amendment exactly three months 
before the date of election invalidate the amendment? The Attor¬ 
ney-General in ruling upon this question stated: 

... it is the opinion of this Department that the beginning of pub¬ 
lication of a proposed constitutional amendment at least three months 
prior to the date of the election is absolutely essential to the validity 
of the adoption of the amendment by reason of constitutional mandate; 
and since no publication began in this instance until on or after June 4, 
1923, and the election on the amendment was set by the legislative 
resolution for the fourth Saturday in July, 1923, there can not be 
adequate compliance with the Constitution with respect to publication, 
and any favorable vote on the amendment would be ineffective, and the 
proposed amendment would not become a part of the Constitution. 4 

Governor Can Not Veto Amendment Proposal .—The Governor 
has the right to veto bills, orders, and resolutions to which the 
concurrence of both houses is needed. 5 He has beyond a doubt the 
right to veto bills, and as to resolutions and orders, it has been 
interpreted that he has the right of veto only if the resolution or 
order contains legislation. Would the Governor have the right to 
veto a joint resolution proposing an amendment? In answer to this 
question, it has been pointed out that “all joint resolutions propos¬ 
ing amendments to the Constitution of the State of Texas are not 
required to be presented to the Governor for his approval or dis¬ 
approval.” 6 In fact, the entire amending process has been declared 
to be separate and apart from the other parts of the Constitution. 

It [Art. XVII, sec. 1] affords a complete procedure. It does not 
refer to, nor is it dependent upon, any other part of the Constitution. It 
does not deal with matters of general legislation, but is confined exclu¬ 
sively to the one subject of amending the Constitution. 7 

In view of this independence of the amending process, it is clear 
that resolutions proposing amendments are not controlled by the 
ordinary legislative procedure. That is, the resolution does not 
have to be read upon three different days, and if voted down, con¬ 
trary to the procedure on bills and other resolutions, it may be 
voted on day after day until it receives the necessary two-thirds 
majority. 

4 Biennial Report of the Attorney-General, 170 (1922-1924). 

B Constitution, Art. IV, sec. 15. 

6 Biennial Report of the Attorney-General, 141 (1918-1920). 

7 Ibid., 142. 


AMENDMENT AND REVISION 


21 


When an Amendment Takes Effect. —A constitutional amend¬ 
ment takes effect when the returns have been counted, it has been 
judicially held. On the fifteenth day after the election the Secre¬ 
tary of State, in the presence of the Governor and Attorney- 
General, or either one of them, opens and counts the returns. If 
the returns show that a majority of the votes cast on the amend¬ 
ment has been cast in its favor, the amendment is adopted, and 
the Governor by proclamation declares the amendment to be a part 
of the Constitution. The fact that a majority has voted in favor of 
an amendment does not give that amendment operative force from 
the time of election. 8 

CONSTITUTIONAL AMENDMENTS SINCE 1876 

Number of Amendments Proposed, Adopted, and Rejected .— 
Texas has been operating under the present Constitution for fifty- 
seven years, and during this period one hundred and twenty amend¬ 
ments to the Constitution have been proposed. 9 Prominent among 
the subjects of these proposed amendments have been taxation, 
the judiciary, Confederate pensions, highways, prisons, prohibi¬ 
tion, suffrage, salary increases, and amendments concerning ad¬ 
ministrative organization. Probably the amendments most fre¬ 
quently proposed have been those dealing with the subjects of 
taxation, the salary of the Governor, the salary of legislators, and 
pensions for Confederate soldiers. Ten times has the Legislature 
submitted an amendment to increase the salaries of legislators; the 
last attempt was successful in 1930. Likewise, the people have seven 
times voted down attempts to increase the salary of the Governor. 

Of the one hundred and twenty amendments proposed since 
1876, sixty have been adopted, fifty-seven have been defeated at the 
polls, one was never submitted, one was submitted illegally, and 
the Election Board has been enjoined from counting the votes cast 
for one amendment in November, 1932. Dr. Irvin Stewart shows 
that through 1922, thirty-eight amendments had been adopted, 
fifty-one had been rejected, and one had not been submitted. 10 The 
ratio of adoptions since 1922 has been much better. Of the thirty 
amendments proposed by the Legislature since 1922, twenty-two 

8 Sewell v. The State, 15 Cr. R. 56 (1883) ; General Laws, 43d Leg., reg. 
sess., 764 (1933). 

9 Dr. Irvin Stewart in “ Constitutional Amendments in Texas,” South¬ 
western Political Science Quarterly , III, 145-158 (1922), presents a survey 
of the history of constitutional amendments in Texas through 1922. 

10 Ibid., 147. 


22 


GOVERNMENT OF TEXAS 


have been approved by the people, one was submitted illegally, the 
counting of the vote for one has been enjoined, while only six have 
been defeated. 11 

General and Special Elections .—“General elections seem to have 
proved more favorable to constitutional amendment than special 
elections; for nearly two-thirds of the amendments submitted at 
general elections have been adopted, and over two-thirds of those 
submitted at special elections have been defeated.” 12 Since 1922, 
twenty-three amendments have been submitted at general elections, 
and all of these have been approved by the people. In the same 
period six amendments have been submitted at special elections, 
and all have failed of adoption. The record since 1922 is convincing 
proof that a general election is more favorable than a special elec¬ 
tion to have the people vote upon constitutional amendments. 

Vote Cast on Amendments .—In examining the vote cast for 
the one hundred and twenty amendments which have been sub¬ 
mitted to the Texas electorate, one notes that the vote in practically 
every instance has been small whether the amendments were ap¬ 
proved or defeated. “The fact is that a representative vote has been 
cast in Texas on constitutional amendments on but two occasions, 
these on the prohibition amendments of 1887 and 1911, which, by 
the way, were submitted in special elections. They brought out a 
big vote because they came up from the people; there was popular 
demand for the election, and, moreover, there were long and inten¬ 
sive campaigns in respect to the proposals.” 13 

The second amendment to be proposed to the Texas Constitu¬ 
tion, submitted in 1881, was defeated by a vote of 36,647 to 20,149. 
The vote cast in the Governor’s race in 1880 had been 264,204. The 
judiciary amendment of 1891, a rather important and fundamental 
change, was approved by the electorate by the small vote of 37,445 
to 35,695, while the vote cast in the Governor’s race in 1890 had 
been 342,409. The suffrage amendment in 1895 was approved, the 
total popular vote being 319,911 as compared with a total vote of 
539,788 cast in the Governor’s race of 1894. The suffrage amend¬ 
ment of 1901, the prohibition amendment of 1911, and a taxation 
amendment of 1919 brought out rather large votes, but such cases 
are decidedly in the minority. 

Representative illustrations of the low vote cast on constitutional 

11 Files of the Secretary of State. 

12 Stewart, op. cit., 145. 

13 Dallas Morning News, September 13, 1927. 


AMENDMENT AND REVISION 


23 


amendments in Texas are to be found in the elections of 1925, 
1927, and 1929. The total vote cast on four amendments in 1925 
and in 1927 was exceedingly low. Of two amendments submitted 
to the voters in 1929, the judiciary amendment was defeated by a 
vote of 77,066 to 49,681, while the proposal to increase the salary 
of the Governor met a similar fate, being defeated by a vote of 
76,166 to 49,644. In the first primary of 1928, the total vote cast in 
the Governor’s race was 737,901. 14 The vote cast in the Governor’s 
race was small when compared to the electorate, which was esti¬ 
mated at 1,368,044, but the vote cast on the two constitutional 
amendments of 1929, when compared with the electorate, was even 
lower. Hardly one-tenth of the electorate participated in the election 
on the constitutional amendments. 15 

The Dallas Morning News in commenting editorially on the vote 
cast on the above two amendments stated: 

If ever there comes a time when citizenship has a direct chance to 
take part in government it comes when there is an election to change 
the fundamental law. And yet it is very difficult to get one voter in 
ten to either say yes or no on propositions so simple as raising the 
Governor’s salary, or enlarging a court to a full-size, full-time, full- 
authority basis. In Dallas County about one-tenth of the usual vote 
was cast. Far less than one-tenth of the qualified voters went to the 
polls. In several boxes as few as five persons represented the total 
turnout. 16 

Thus, it may be concluded that constitutional amendments in 
Texas, with few exceptions, have repeatedly polled small votes. 
How can this inertia in voting be explained? Is it true that the 
electorate is not interested in proposed changes in the Constitution ? 
Except in a few instances the vote on constitutional amendments 
has been so small that it can hardly be said that the electorate spoke 
authoritatively. With few exceptions, the vote on defeated amend¬ 
ments has been so small that it can not be concluded that those 
amendments were not desired by the people as a whole. It has been 
pointed out that in 1927 only one-fifth of the qualified electorate 
voted on the four amendments of that year. “Approximately a mil- 

14 Texas Almanac, 243 (1929). 

15 In the last two general elections a larger vote has been secured: the 
highest total vote on a single amendment in 1930 was 208,617, while the 
amendment exempting homesteads from State taxation polled a total vote 
of 547,385 in the election of 1932. The total vote for Governor in the latter 
election was 859,575. 

16 Dallas Morning News, July 19, 1929. 


24 


GOVERNMENT OF TEXAS 


lion voters remained away from the polls. They were indifferent; 
perhaps a bit confused as to what it all meant.” 17 

Reasons for Small Vote and Defeat of Constitutional Amend¬ 
ments .—There are several explanations for the small vote cast 
on constitutional amendments in Texas. First, it might be inferred 
that the proposed amendments have not been desired by the elec¬ 
torate. But if the electorate was positively opposed to the suggested 
changes, why did it fail to speak emphatically against them? Sec¬ 
ond, possibly the people prefer that their representatives make these 
needed changes rather than be called upon to decide such questions 
themselves. Is it possible that the people would allow their Legisla¬ 
ture to change the Constitution by mere legislative act? From the 
statistics on the extent to which the franchise has been exercised on 
questions of constitutional amendment, the electorate might as 
well intrust the Legislature with this power. Third, it might be said 
that frequently the amendments are not thoroughly understood by 
the voter, because little or no campaign has been conducted in their 
behalf. Rather than cast an ignorant vote, many stay away from 
the polls. Others, more reactionary, vote against all changes as a 
matter of principle. Finally, the small vote can be explained by the 
general inertia and lethargy on the part of the electorate. Constitu¬ 
tional amendments are unimportant to . the average Texas voter, 
with the result that the customary lethargy of the voter is even 
more pronounced when constitutional amendments are up for a 
vote. 

Some of the proposed amendments probably lacked merit and 
did not deserve to be adopted. Others were badly framed, but the 
most general cause of failure at the polls is the fact that they are 
not sufficiently explained to the people. To remedy this shortcom¬ 
ing it has been 

. . . suggested that there ought to be not only advance and concur¬ 
rent publicity, but also that there ought to be full publicity of pro¬ 
posed changes in constitutions whether submitted by conventions or 
Legislatures. The example of a number of States, such as California, 
Oregon, Ohio, and Michigan, is pointed out. These publish officially 
and distribute to every registered voter a pamphlet setting forth the 
text of all proposed amendments and of the provisions they would 
displace, the changes being indicated by differing type faces. Each 
of such proposed changes is followed by an explanation upon the part 
of the proponents and an explanation upon the part of the opponents. 

11 Dallas Morning News, August g, 1927. 


AMENDMENT AND REVISION 


25 


Then there is a first-class index and lastly a facsimile copy of the 
ballot. These States go to a great deal of trouble and expense to inform 
the citizens. A study of the election returns shows that it pays. 18 

This suggestion for the use of the so-called “voter’s guide” has 
merit. Although it does not assure the passage of amendments, it 
secures at least one desired result: it brings out a larger percentage 
of the electorate to the polls, and they come as voters who are 
capable of casting a relatively intelligent vote. 

Conclusion .—The mortality rate of constitutional amendments 
in Texas has been high. Although there is no formula by which 
their passage can be assured, there are certain precautions which 
can be taken to give proposed amendments a fair chance. First, 
the necessity, expediency, and practicability of a proposed change 
should be well established by study and research before the submis¬ 
sion of an amendment. Second, care should be taken that proposed 
amendments are properly drafted. Legislative reference bureaus 
and expert bill drafters lessen the danger of poor drafting. A bu¬ 
reau which devotes its whole time to the drafting of measures is 
more capable of properly drawing up an amendment than most 
legislators and administrative officers. Third, after the amendments 
have been submitted, they should be given wide publicity. A prop¬ 
erly conducted campaign for the amendments, the use of the voter’s 
guide, and an extensive use of the newspapers would be expensive. 
But an election on constitutional amendments costs the State and 
county governments around $i20,ooo. 19 If the amendments are 
needed, it would not be unwise to spend a goodly sum to give 
them a fairer chance of being approved by the people. The in¬ 
creased vote brought out would be impressively decisive one way 
or the other. 

MOVEMENT FOR A CONSTITUTIONAL CONVENTION 

The Old and the New .—The failure to bring about desired 
changes in the Texas Constitution through the amending process 
has led to a movement to revise the Constitution through the use 
of a constitutional convention. Amendment after amendment, con¬ 
structive and progressive in nature, has been defeated at the polls 
by a small group of voters. With this failure to keep pace with the 
growth of society, the State finds its development hampered by an 
out-of-date Constitution. 

18 Dallas Morning News, November 16, 1921. 

19 Ibid., August 9, 1927. 


26 


GOVERNMENT OF TEXAS 


The movement for revision does not connote any disrespect for 
the framers of the present Constitution. Rather, those favoring 
it would consider them as ordinary human beings acting under 
the influence of an abnormal environment, and would dispel with 
common sense the mist of sentimentalism that has come to sur¬ 
round their handiwork. As one students asks, should the people be 
called upon to believe “that the Constitution is the work of infalli¬ 
bility, like the Decalogue handed down from on high with all its 
eternal verities, while the hills about Austin quaked, and the smoke 
ascended, and the people stood afar off filled with awe ?” 20 All 
arguments for the maintenance of the status quo based solely upon 
the wisdom of our incomparable forefathers are specious. 

The conditions prevailing at the time of the framing of the Con¬ 
stitution are reflected in its provisions. The State was just emerging 
from the disastrous period of Reconstruction, and the actions of the 
autocratic E. J. Davis, of “carpetbag” legislators, and of a corrupt 
judiciary were fresh in the minds of the people. In the convention 
the “delegates, fearing that the Government might again be wrested 
from the people, loaded the new Constitution with limitations to 
hog-tie the carpetbaggers should they regain power.” 21 “This has 
resulted in perpetuating a regime of fiscal penuriousness and im¬ 
posing permanent limitations of a very serious character upon the 
powers of public organs and officials.” 22 The prerogatives of the 
Legislature were reduced to a minimum and the discretionary 
authority of civil servants was practically eliminated. 

It is a cardinal principle of political science that the constitution 
of a people must reflect the social, economic, and political needs of 
a people. “As new truths are disclosed, as new discoveries are made, 
as new inventions are devised, as civilization advances, the funda¬ 
mental policies of government must change to keep pace with the 
progress of the day.” 23 The Texas Constitution has failed to keep 
pace. Problems have arisen of which its framers never dreamed. 
Old problems need to be coped with in a more effective manner. 
The whole philosophy of government has undergone a radical trans¬ 
formation. Yet we cling obstinately to the antiquated Constitution 
of 1876. 

20 S. D. Myres, Jr., “Mysticism, Realism, and the Texas Constitution of 
1876,” Southwestern Political and Social Science Quarterly, IX, 172-173 
(1928). 

21 Dallas Morning News, November 16, 1921. 

22 Myres, op. cit., 182-183. 

23 Pat M. Neff, The Battles of Peace, 21 (1925). 


AMENDMENT AND REVISION 


27 


The whole question is succinctly stated in this extract from a 
thoughtful editorial: 

Texas has grown great in the last sixty years. It is a leading State, 
yet, like an overgrown boy in short pants, it is trying to get along 
with a Constitution mostly outgrown. A Constitution should be based 
on conditions as they are, and not on conditions as they used to be. 
Our State Government is in a strait-jacket, hindered in its forward 
development by antiquated provisions no longer useful. 24 

Movement for Revision .—The movement to revise the Consti¬ 
tution of 1876 can be traced back to dissatisfaction with the docu¬ 
ment a few years after its adoption. Of course, there was oppo¬ 
sition to its adoption in 1876, 25 but not all would have favored any 
proposal. It was approved by a vote of 136,606 to 56,652. 26 Al¬ 
though he had advocated its adoption, Richard Coke, while Gover¬ 
nor, remarked that the Constitution of 1876 was a hindrance to 
the growth of Texas. 27 At a special session of the Legislature in 
1901,. there was agitation for the calling of a constitutional conven¬ 
tion. “It was said then, and it is yet said, that the Constitution is 
archaic, that it does not fit present conditions as it did the condi¬ 
tions of 1876, the year of its adoption.” 28 

Since 1917 the question of the calling of a constitutional con¬ 
vention has been constantly before the Legislature. During this 
period the Legislature has met in nine regular sessions, and with 
the exception of the session of 1925, at least one resolution has been 
introduced in each session for the calling of a constitutional con¬ 
vention. 29 In the regular sessions of 1917 and 1923 there were 
three such resolutions introduced. Of the numerous resolutions 
that have been introduced for this purpose since 1917, only one has 
completed all the steps in the legislative procedure and reached the 
people. The Thirty-sixth Legislature passed such a resolution in 
1919, which submitted to the people the question as to whether it 
was their will that a constitutional convention be called. This ques¬ 
tion was put to a vote in November, 1919, and was defeated by a 
vote of 71,376 to 23,549. 30 Out of an electorate of approximately 
811,104, only 94,925 voters expressed themselves either way on this 

24 Dallas Morning News, September 20, 1929. 

25 My res, op. cit., 177-182. 

20 Records of the office of the Secretary of State. 

27 Neff, op. cit., 22. 

28 Dallas Morning News, November 16, 1921. 

29 House and Senate Journals, passim (i 9 I 7 _I 933 )* 

80 Records of the office of the Secretary of State. 


28 


GOVERNMENT OF TEXAS 


important question. 31 All this vote revealed, then, was that out of 
the approximate ten per cent of the qualified electors voting on the 
question, a majority was against the calling of a convention. 

With the failure of this attempt, the movement for revision did 
not die. It was stated in 1921 that notwithstanding “the vote of 
1919, there seems to be warrant for asserting that the need of a 
new Constitution in Texas is universally felt, and that the proposal 
was rejected because of the manner in which the Legislature went 
at the thing.” 32 The Texas Bar Association has favored the calling 
of a convention to revise the Texas Constitution. Before its annual 
meeting in 1928, the president of the organization made the fol¬ 
lowing rather significant statement: 

We have exercised hard common sense in all lines of business. We 
have been progressive and intelligent in all walks of life save and 
except one, and that one more important to our happiness and welfare 
than all others—our government. We need a “new model”; the “old 
model” is obsolete. It has served its purpose. 33 

LEGAL ASPECTS OF THE CONVENTION 

Legality of the Popular Convention. —Texas is one of the twelve 
states not having in the state constitution a provision for the calling 
of a constitutional convention. In these states, the so-called author¬ 
ized convention can not be held, but, with the exception of Rhode 
Island, the popular convention is deemed to be legal in these states. 
In Rhode Island the Legislature asked the courts for a ruling upon 
the question as to whether it could call a constitutional convention. 
The opinion pointed out that the Legislature did not have such 
power, and in view of the mode of amendment prescribed in the 
Constitution of Rhode Island, the document could not be constitu¬ 
tionally or legally amended in any other manner. 34 “The decision, 
however, has been generally discredited and the weight of authority 
is that notwithstanding such a provision in the existing constitution, 
a popular convention can be duly called for revising the fundamen¬ 
tal law.” 35 Dodd holds that popular conventions are legal. He says: 

It has now become the established rule that where the Constitution 
contains no provision for the calling of a convention, but has no 

31 T ex as A Imanac, 261 (1929 ). 

32 Dallas Morning News, November 16, 1921. 

33 Ibid., June 2, 1928. 

34 In re Constitutional Convention, 14 R. I. 649 (1883). 

35 Homer Hendricks, “Some Legal Aspects of Constitutional Conventions,” 
Texas Law Review, II, 196 (1924). 


AMENDMENT AND REVISION 


29 


provision expressly confining- amendment to a particular method, the 
legislature may provide by law for the calling of a convention—that 
is, the enactment of such a law is within the power of the legislature 
unless expressly forbidden. . . , 36 

A similar statement was made by the North Dakota Supreme Court 
in 1896 in State v. Dahl. 57 Without going any further into the mass 
of opinion, which points to the legality of popular conventions, it 
may be concluded that a popular convention in Texas would be 
legal. In fact, the Convention of 1875 was a popular convention, 
and the legality of the work of this body, the present Constitution, 
has never been questioned. Such conventions are based upon the 
right of the people to alter, change, or abolish their government. 

Calling the Convention. —In a consideration of the procedure in 
the calling of a convention, the question arises as to whether the 
legislature may call a convention without putting the question to a 
vote of the people. The general tendency of first putting the ques¬ 
tion to a vote of the people is pointed out by Hoar, who says that 
“. . . convention-calling is not a regular function of the legisla¬ 
ture, and there is a growing tendency toward the view that the 
legislature has no power to call a convention without first obtain¬ 
ing permission from the people.” 38 Ruling Case Law supports the 
doctrine that the legislature should first submit the question of 
calling a convention to a vote of the people. 39 A Texas attorney is 
of the opinion that the “election of delegates to a convention which 
is called by the legislature without popular authorization should 
be enjoined.” 40 

The question turns upon the doctrine which one holds with re¬ 
gard to the powers of the state legislature. If the legislature is a 
body possessing inherent powers, it would indubitably have the 
power to call a constitutional convention without consulting the 
wishes of the electorate. 41 On the other hand, if one subscribes to 
the doctrine that the legislature may exercise only delegated pow¬ 
ers, the conclusion must be that, in the absence of a specific grant 
of power to call a convention, the legislature has no such power. 

36 W. F. Dodd, The Revision and Amendment of State Constitutions , 44 
(1910). 

37 R. S. Hoar, Constitutional Conventions, 48 (1919). 

38 Ibid., 68. 

39 6 R. C. L. 27 (1915). 

40 Hendricks, op. cit., 202. 

41 Judge Jameson in his work, The Constitutional Convention, expounds 
the theory of the supremacy of the legislative body. 


30 


GOVERNMENT OF TEXAS 


In 1923 the Attorney-General of Texas at the request of the 
Legislature ruled upon the question. The ruling of the Department 
was to the effect that the Legislature could not without an affirma¬ 
tive vote of the people call a convention to revise or alter the State 
Constitution. The opinion held that the calling of a convention is 
not within the grant of legislative power to the Legislature, but 
that the people have reserved to themselves the right to change their 
fundamental law, that they have specified in their Constitution 
that the Legislature can only submit specific amendments, and 
that it is only through necessity and usage that the Legislature 
can even submit to the people the question of calling a convention. 
The ruling indicated that the manner of amending the Constitu¬ 
tion has been definitely prescribed, and until that method should be 
changed, or until the people had acted, the Constitution could not 
be legally changed in any other way. 42 

This opinion of the Attorney-General is criticized by Professor 
Haines as contrary to the weight of authority, which is in favor 
of the power to call a constitutional convention residing in the 
Legislature where no provision is made in the Constitution for 
the calling of a convention. There are few opinions against this 
inherent power in the Legislature to call a convention without the 
approval of the electorate and only two important judicial prece¬ 
dents against the exercise of such power. Admitting that the 
opinion might be correct from the standpoint of policy, he con¬ 
tended that it raised serious difficulties from the standpoint of inter¬ 
pretation of state laws and constitutions. 

The theory of implied limitations on legislative powers is an un¬ 
sound theory of judicial construction as applied to the interpretation 
of state constitutions. It needs to be sparingly applied, if not to be 
discarded entirely, if representative bodies are not to be unduly re¬ 
stricted in their functions. 43 

May the Governor Veto the Call for a Convention ?—In calling 
a constitutional convention, the question arises as to whether the 
Governor may veto the resolution calling the convention. In Texas, 
there is neither Case Law nor opinion on this question. Following 
the reasoning of the legal department that the Legislature is not 
exercising a legislative power in calling a convention, and that it 

42 Biennial Report of the Attorney-General, 192-209 (1922-1924). 

43 C. G. Haines, “Can a State Legislature Call a Constitutional Convention 
without First Submitting the Question to the Electorate?” Texas Law Re¬ 
view, I, 329-336 (1923). 


AMENDMENT AND REVISION 


31 


acts only by virtue of necessity and usage, it would be concluded 
that the Governor could not veto such a resolution. As has been 
indicated the veto power of the Governor extends only to matters 
of a legislative nature. Hoar is of the opinion that the legislature 
in adopting such a resolution is merely giving the people an oppor¬ 
tunity to act in their sovereign capacity. 44 In regard to the conven¬ 
tion act, which provides the details of holding the convention and 
which is legislative in nature, it follows that the Governor may 
exercise his veto over such an act. 45 The Governor, then, can not 
block the procedure by vetoing a resolution calling an election on 
the question of a convention, but he can at least suspend it for a 
time by vetoing the convention act. 

May the Legislature Act as a Convention? —This question grows 
out of the attempt on the part of the legislature to propose amend¬ 
ments with the intent of changing entirely the existing constitution. 
For example, in 1912 the Indiana Legislature proposed a bill 
which was the existing constitution with twenty-three amendments. 
This was to be submitted to the people, and if it had been adopted, 
it would have had the effect of a new constitution. The power of the 
Legislature to change the fundamental law in this manner was 
denied by the courts. 46 In 1917 the Legislature of North Dakota 
proposed an entirely new constitution. The Attorney-General of 
the State held valid this attempt on the part of the Legislature to 
revise the Constitution. He emphatically declared that the pro¬ 
posed method of amendment was clearly constitutional and “the 
arguments in favor of its legality unanswerable.” 47 Judge Jameson, 
who in most questions upheld the supreme authority of the legis¬ 
lature, thought it “thoroughly settled that, under our Constitutions, 
State and Federal, a legislature can not exercise the functions of a 
convention—can not in other words, take upon itself the duty of 
framing, amending, or suspending the operation of the fundamental 
law.” 48 Dodd believes that a new constitution may be proposed in 
the guise of amendment “. . . where the legislature is not re¬ 
stricted as to the number or character of amendments which it may 1 
propose, but precedent is against the exercise of such power, al¬ 
though in Rhode Island, this is the only way of obtaining a com- 

44 Hoar, op. cit., 92. 

45 Ibid., 93. 

48 Ellingham v. Dye, 178 Ind. 336 (1912). 

47 Quoted in J. M. Mathews and C. A. Berdahl, Documents and Readings 
in American Government, 562-567 (1928). 

48 Quoted in Hoar, op. cit., 84. 


32 


GOVERNMENT OF TEXAS 


plete constitutional revision.” 49 With the exception of the North 
Dakota opinion, the courts and writers are fairly well agreed that 
the legislature can not exercise the functions of a constitutional 
convention. 

Submission of the Convention’s Work .—If the convention act 
prescribes the procedure to be followed in submitting its work 
to the people, that method governs, although there have been ex¬ 
ceptions to this rule. 50 “There are no recorded instances of a 
convention refusing to submit the fruit of its labors to the people 
when required by express constitutional provision.” 51 The gen¬ 
eral rule is that, even where the convention act fails to state how 
the convention shall submit its work, submission shall be made 
to the people. Since in Texas the people have reserved to them¬ 
selves the right to change or alter their fundamental law, a constitu¬ 
tional convention would be obliged to submit its work to the people, 
if no other means had been prescribed, for the new “. . . constitu¬ 
tion prepared by a convention derives its force from the action of 
the people and not from that of the legislature which may have 
issued the call for the convention.” 52 

PROBLEMS BEFORE A TEXAS CONVENTION 

If a constitutional convention should be called in Texas, what 
are some of the subjects which it would have to deal with? Prob¬ 
lems of administrative reorganization, the short ballot, civil service 
reform, and accounting control of State expenditures are pressing 
for solution. Judicial reform is in its infancy. Legislative organiza¬ 
tion, representation, procedure, the initiative, referendum, and re¬ 
call, municipal home rule and the reorganization of county govern¬ 
ment need consideration. Newer problems of elections and suffrage, 
of education, of health, of prison management and public welfare, 
of taxation, and the regulation of business corporations and labor, 
would occupy a prominent place on the convention’s agenda. The 
administration and financing of a State system of public highways 
is one of the most important problems before the people. Public 
utility regulation looms as a major governmental problem. The con¬ 
servation of the natural resources of the State, the administration 
of the public lands, and the operation of the homestead provisions 
of the Constitution should have careful study. Consideration should 

51 Idem. 

62 6 R. C. L. 28 (1915). 


40 Dodd, op. cit., 260. 
50 Hoar, op. cit., 194. 


AMENDMENT AND REVISION 33 

also be given to the method of amending and revising the Consti¬ 
tution. 

To prepare effectively for the making of a new constitution 
special provision has been made in advance in a number of states, 
including Massachusetts, New York, and Illinois. In Massachusetts 
a commission was appointed under act of the General Court to com¬ 
pile data and material for the use of the convention. A number of 
specialists in government and law were engaged and short bulletins 
on a wide variety of subjects were prepared and placed at the dis¬ 
posal of the members of the convention. Technical assistance to the 
committees of the convention was rendered by the members of 
the commission. 53 

Some work of this nature has been done in Texas, but much 
remains to be accomplished. Provision should be made by the 
Legislature, before the calling of a convention, for an official com¬ 
mission to collect material and to prepare information in convenient 
and intelligible form for the use of the members of the convention. 
The small expenditure involved would be amply justified by the 
results. 


REFERENCES 

The best books dealing with the general subject of the amendment 
and revision of state constitutions are: J. A. Jameson, The Constitu¬ 
tional Convention (1867) ; W. F. Dodd, The Revision and Amendment 
of State Constitutions (1910) ; R. S. Hoar, Constitutional Conventions 
(1919); and J. Q. Dealey, Growth of American State Constitutions 
(1915). The material on the amendment of the Texas Constitution is 
somewhat scattered. The student should consult the legislative journals 
and laws, the records in the Secretary of State's office, and the biennial 
reports of the Attorney-General. The Texas Almanac, Texas Weekly, 
and daily newspapers may be consulted for certain statistical material. 
The Dallas Morning News has published numerous articles and edi¬ 
torials on the subject, most of them from the pens of the late Tom 
Finty, Jr., and Alonzo Wasson. A thoughtful discussion of the problem 
of a constitutional convention is found in Cecil H. Tolbert, A Proposed 
Constitutional Convention for Texas (Master’s Thesis, University of 
Texas, 1930). 

53 “Report of the Commission to Compile Information and Data for the 
Use of the Constitutional Convention,” Bulletins for the Constitutional Con¬ 
vention, No. 37, 595-613 (1917-1918). 


CHAPTER III 

THE STATE LEGISLATURE 


The Legislature is one of the three coordinate branches of the 
State Government. Its primary function is the formulation of 
policy, and by the exercise of this power it assumes in reality a posi¬ 
tion of ascendency over the other two departments. It determines 
what services the government is to render, but in doing so it must 
fix the organization and procedure to be used in carrying out the 
legislative will, and often has a certain control over the personnel 
which executes its policies. By its power of investigation it may 
make sure that the practice of the administration is in harmony 
with its policies. It occupies, therefore, a position somewhat analo¬ 
gous to that of the board of directors of a corporation. Its organiza¬ 
tion, procedure, and powers are the result of a long evolution of 
representative institutions, and it is the chief instrument by which 
the people rule. 


ORGANIZATION 

The Bicameral System .—The Constitution provides that the 
legislative power of Texas shall be vested in a Senate and House 
of Representatives, which together shall be styled “The Legislature 
of the State of Texas.” 1 Texas, like all the American states, has 
adopted the bicameral principle as a feature of the system of checks 
and balances. Without question it has tended to minimize some 
of the evils of hasty legislation by giving opportunity for second 
thought, but it has resulted also in friction and unnecessary delays. 
The value of the bicameral plan was questioned as early as the 
period of William Penn and Benjamin Franklin. Franklin is said 
to have compared a double-chambered legislature to a cart with 
a horse hitched to each end, both pulling in opposite directions. 2 
In recent years there has been a movement to abolish the two-cham- 

1 Constitution, Art. Ill, sec. i. 

2 J. M. Mathews and C. A. Berdahl, Documents and Readings in American 
Government, 655 (1928). 


34 


THE STATE LEGISLATURE 


35 


ber system. The governors of Arizona, Washington, and Kansas, 
in 1913, and of South Dakota in 1926, recommended constitutional 
amendments for a unicameral legislature. In Oregon the question 
of the abolition of the Senate was submitted to the people in 1912 
and again in 1914; the same year Oklahoma rejected an amendment 
to the Constitution providing for the unicameral plan by a vote of 
94,600 to 71,700. In Nebraska, a joint legislative committee made 
a report favoring the establishment of a single chamber with a 
limited membership. 3 

“Nothing is more common,” said the committee report, “than 
for one house to pass a bill and for the members who voted for it 
to urge the other house to defeat it, and for a little group of mem¬ 
bers in one house to hold up legislation for the other house until 
they extort from it what they demand.” “Deliberation and reflection 
do not now mark the work of the two house legislature, which 
passes most of its legislation the last ten days of the session. A 
smaller body with a more direct responsibility upon each member 
arising therefrom, will tend to greater deliberation and reflection 
than the present system.” 4 The Model State Constitution prepared 
by the National Municipal League provides for a single-chambered 
legislature. 5 

Basis of Apportionment and Representation. —The question of 
apportionment of state senators and representatives is a funda¬ 
mental problem. The two principles followed in apportionment are 
population and territory. In about one-third of the states the consti¬ 
tutions provide that each county shall have at least one representa¬ 
tive in the lower house. This provision operates to restrict the 
representation of the urban counties and gives undue representation 
to the sparsely populated counties. 6 The constitutions of most of 
the New England states provide that numerical equality shall pre¬ 
vail in the apportionment of one house, and geographical equality in 
the other. 7 

Representation in the House of Representatives of the Texas 
Legislature is based on population, but apportionment of Senators 
is made upon the basis of the number of qualified electors. The 
State is divided into thirty-one senatorial districts of contiguous 

3 F. A. Ogg and P. O. Ray, Introduction to American Government, 4th ed., 
690 (1931). 

4 Nebraska Legislative Reference Bureau, Bulletin, No. 4, 17 (1914). 

5 A Model State Constitution, Secs. 13-32 (i9 22 )- 

6 J. M. Mathews, American State Government, 159 (1924). 

7 C. A. Beard, American Government and Politics, 6 th ed., 560 (1931)- 


36 


GOVERNMENT OF TEXAS 


territory, each Senator representing about 38,707 electors. Each 
district elects one Senator, and no single county is entitled to more 
than one Senator. 8 Dallas, Harris, and Tarrant counties have one 
Senator each; the Senator from the least populated section of the 
State represents twenty-seven counties. 9 

The members of the House of Representatives are apportioned 
among the several counties according to population. When two or 
more counties are required to make up the ratio of representation, 
such counties must be contiguous. In case of a surplus a county 
may be joined with a contiguous county or counties to elect a “flo- 
torial” Representative. 10 Under the present apportionment Dallas 
County has six Representatives; one of them, however, represents 
Kaufman and Rockwall counties; Bexar County has five; Harris 
County, five; Tarrant County, four; Wichita County, three (with 
one member also representing Wilbarger County) ; and Travis 
County has two. The maximum number of counties in one district 
is thirteen. Each member represents an average of about 40,153 
people. In the Forty-second Legislature a proposed amendment to 
the Constitution providing that counties having 500,000 or less 
population should not have more than five members in the House 
of Representatives and one Representative for each additional 100,- 
000 population was adopted by the lower house, but failed in the 
Senate. 11 

In the American states there has been a movement to secure more 
equitable political representation for all groups. Efforts in this 
direction include the operation of cumulative voting in Illinois, 
proportional representation, and the representation of occupational 
groups. The critics of these plans contend that they involve many 
practical difficulties, and that the various occupational groups secure 
representation under the present system. 12 

The Constitution makes it obligatory upon the Legislature to 
reapportion the State after each decennial census. The last appor- 

8 Constitution, Art. Ill, sec. 25. 

* Legislative Manual, 42d Leg., 530-532 (1931). 

10 Constitution, Art. Ill, sec. 26. 

11 Texas Weekly, VII, 6-7 (May 2, 1931). 

12 The chief occupational groups in the House of the Forty-second Legis¬ 
lature were: lawyers, 68; farmers and stockmen, 28; editors and publishers, 
7; insurance, 8; salesmen, 5; merchants, 5; students, 4; teachers, 4; retired, 
3; with the remainder scattering. In the Senate, there were 18 lawyers, 3 
farmers, 2 bankers, and one of each of the following: merchant, physician, 
automobile dealer, teacher, real estate dealer, publisher and editor, business¬ 
man and life insurance agent.— Legislative Manual, 426. Leg., 520-523, 530-532 


THE STATE LEGISLATURE 


37 


tionment was made in 1921. The people of West Texas complained 
of a lack of representation and so additional Representatives were 
added. This reapportionment gave the House its constitutional 
limit. Since this is true, it remains a question of doubt as to the 
time of the next reapportionment. There is no way in which the per¬ 
formance of this duty can be enforced in the courts when the Legis¬ 
lature fails to carry out the constitutional mandate. This is illus¬ 
trated by the fact that there was no reapportionment for the Senate 
from 1901 to 1921. The question of reapportionment must be faced 
again soon by the Legislature. The newly settled and growing sec¬ 
tions of the State will demand a proportionate share of the mem¬ 
bers of the Legislature. 13 

Differences between the Houses. —The principal differences be¬ 
tween the two houses of the Texas Legislature are in size, term, 
and the legislative experience of the members. The Senate also 
possesses certain powers foreign to the House such as the power 
to try cases of impeachment and to consent to appointments by 
the Governor. 

The Senate is much the smaller body; it must consist of thirty- 
one members, and may never be increased above that number. The 
first House of Representatives under the Constitution of 1876 had 
a membership of ninety-three, but because of the increase in popu¬ 
lation the membership at present is one hundred and fifty, which 
is the maximum number allowed under the Constitution. 14 The 
smaller membership of the Senate adds to its dignity and makes it 
more of a deliberative body. 

Senators are elected for four-year terms and Representatives for 
two years. One-half of the Senators are elected at a single election, 
the other half being composed of “ hold-over ” members. 15 As a 
general rule, the Senators have had greater legislative experience 
than the members of the House, the majority of Senators having 
served an apprenticeship in the House before being elected to the 
Senate. 16 

The Constitution does not specify any special training as a quali- 

13 See series of articles by Harry Benge Crozier dealing with the problem 
of reapportionment, which appeared in the Dallas Morning News, November 
11, 12, 13, 14, 1929. 

14 Constitution, Art. Ill, sec. 2. 

15 Ibid., Art. Ill, secs. 3, 4. 

16 In the House of the Forty-second Legislature there were 57 members 
without previous legislative experience. Only 2 members of the Senate had 
had no legislative experience; 17 had served in the House.— Legislative Man¬ 
ual, 42d Leg., 520-523, 530-532 (1931). 


38 


GOVERNMENT OF TEXAS 


fication for membership in either house. Members of the Legisla¬ 
ture must be citizens of the United States, qualified electors of 
the State, and residents of the district which they represent for at 
least one year preceding their election to office. A Senator must 
have resided in the State for five years next preceding his election 
and must have attained the age of twenty-six years. In the case of 
Representatives, the residence requirement is two years, and the 
age requirement is twenty-one. 17 

For obvious reasons members are ineligible to hold any office 
of profit which has been created during their term; they can not 
be interested either directly or indirectly in any contracts let by 
the State or any county. 18 

The law requires that a candidate for the Legislature must file a 
statement of his intention to make the race for the office with 
the party committee of each county in his district at least thirty 
days prior to the primary. In case several are in the race and 
no candidate receives a majority of the votes cast, the two candi¬ 
dates receiving the greatest number of votes enter the second or 
“run-off” primary. The candidate who receives the greater number 
of votes in the second primary is nominated. The nomination is 
equivalent to election, the Democratic nominee nearly always being 
elected in the general election. 

Method of Procedure; Compensation .—The constitutional pro¬ 
visions in force before 1930 required the Legislature to meet bien¬ 
nially in regular sessions. No limit was placed upon the length of 
regular sessions, but the “per diem” of members was reduced from 
five dollars to two dollars after the first sixty days. Practically, 
this resulted in the adjournment of the regular sessions shortly 
after sixty days, and, to secure the passage of appropriation bills 
and other unfinished legislation, the Governor was forced to call 
numerous special sessions. 

In order to correct the special session “evil,” to secure greater 
deliberation in procedure, and the election of a better qualified 
membership by payment of a higher salary, with resulting effi¬ 
ciency in performance, the Forty-first Legislature submitted two 
constitutional amendments, which were adopted by the voters at 
the general election in November, 1930. The first of the amend¬ 
ments sought to provide a new method of procedure for regular 
sessions. 

17 Constitution, Art. Ill, sec. 6, 7. 

18 Ibid., Art. Ill, sec. 18. 


THE STATE LEGISLATURE 


39 


The Legislature shall meet every two years at such time as may be 
provided by law and at other times when convened by the Governor. 
When convened in regular session, the first thirty days thereof shall be 
devoted to the introduction of bills and resolutions, acting upon emer¬ 
gency appropriations, passing upon the confirmation of the recess 
appointees of the Governor and such emergency matters as may be 
submitted by the Governor in special messages to the Legislature; pro¬ 
vided that during the succeeding thirty days of the regular session of 
the Legislature the various committees of each House shall hold hearings 
to consider all bills and resolutions and other matters then pending; and 
such emergency matters as may be submitted by the Governor; provided 
further that during the following sixty days the Legislature shall act 
upon such bills and resolutions as may be then pending and upon such 
emergency matters as may be submitted by the Governor in special 
messages to the Legislature; provided however, either House may 
otherwise determine its order of business by an affirmative vote of 
four-fifths of its membership. 

By the accompanying amendment the “per diem” of members 
was fixed at “not exceeding $10.00 per day for the first 120 days 
of each session and after that not exceeding $5.00 per day for 
the remainder of the session.” Mileage in going to and returning 
from the seat of government was fixed at not to exceed ten cents 
per mile, whereas formerly twenty cents per mile had been allowed. 
Members are not entitled to mileage for any extra session which 
may be called within one day after the adjournment of a regular 
or called session. 19 

The operation of the two constitutional amendments is the subject 
of diverse comment. Some observers have criticized the Legisla¬ 
ture for deviation in procedure from that fixed by the amend¬ 
ments, while others have insisted that the spirit of the new require¬ 
ments has been observed. 20 The cost of legislative sessions has 
undoubtedly increased: the Forty-third Legislature, 1933, appro¬ 
priated $500,000 for the payment of the mileage and “per diem” 
of its members and officers and employees, and $125,000 for con¬ 
tingent expenses. There seems to be no great decline in the num¬ 
ber of special sessions, although the disturbed economic conditions 
may explain this. 

Special Sessions .—On extraordinary occasions the Governor 
may convene the Legislature in special session. Duration of such 
sessions is limited to thirty days, and the Legislature can consider 

19 Ibid., Art. Ill, secs. 5, 24; Legislative Manual, 42d Leg., 498-519 (1931). 

20 Dallas Morning News, January 27, February 1, 8, 1931; January 12, 25, 
31, February 2, 3, 1933; Texas Weekly, VII, 2 (April 4, 1931). 


40 


GOVERNMENT OF TEXAS 


only those subjects designated in the proclamation of the Governor 
calling the session or submitted by him after the body meets. Mem¬ 
bers are entitled to a “per diem” of ten dollars and mileage for 
special sessions. 21 

POWERS AND LIMITATIONS 

Constituent Power .—One of the most important powers of the 
Legislature is the power to propose amendments to the Constitu¬ 
tion. Amendments may be proposed at the regular sessions only, 
and require a vote of two-thirds of all the members elected to each 
house. They become part of the Constitution if ratified by a ma¬ 
jority vote at the polls. 

Lawmaking .—Section 42 of Article III of the Constitution em¬ 
powers the Legislature to pass such laws as may be necessary to 
carry into effect the provisions of the Constitution. In carrying out 
this provision, it enacts laws on many subjects, and a complete 
presentation of its sphere of activity in this connection is impos¬ 
sible here. Among the subjects to which this power extends may 
be mentioned the definition and punishment of crimes, civil rights, 
judicial organization and procedure, public lands, contracts, trade, 
business, the professions, local government, public health, educa¬ 
tion, charity, marriage, divorce, domestic relations, elections, and 
the regulation of corporations in so far as their business is not in¬ 
terstate in character. 

The police power of the State has grown to enormous propor¬ 
tions, and it is difficult to define its limits. The police power is the 
inherent power of the government to pass such laws as may be 
deemed necessary for its own protection and to secure the safety, 
comfort, and general welfare of its citizens. In general it includes 
all legislation designed to promote social welfare. Pure food and 
drug acts; the regulation of hours and conditions of employment 
of women and children; regulation of theatres and markets; the 
licensing of physicians, druggists, and lawyers; the control of 
trusts; quarantine laws; workmen’s compensation laws; the con¬ 
servation of natural resources—all these and many other matters 
come within the bounds of the police power of the State. The police 
power can not be used for the benefit of particular individuals or 
classes; it must not be arbitrary or unreasonable and its main ob¬ 
ject must be the public good. 

Control over the Administration .—The Texas Legislature is not 

21 Constitution, Art. Ill, secs. 24, 40, Art. IV, sec. 8. 


THE STATE LEGISLATURE 


41 


merely a lawmaking body; it acts as an agency of administrative 
control. In this capacity it determines the activities to be engaged 
in, provides for the organization of boards and commissions, and 
outlines their functions, determines the amount of money to be 
used in the carrying on of the various activities, and exercises gen¬ 
eral supervision over all the services of the government. Practi¬ 
cally all administrative agencies make reports to the Governor and 
the Legislature. 

Non-legislative Functions .—One of the chief fields in which the 
Senate exercises executive power is in its authority to pass upon 
appointments by the Governor. The consent of the Senate is re¬ 
quired for all appointments made by the Governor. 22 When the 
upper chamber acts on the nominations of the Governor, it meets 
in executive session, and remarks touching the character and quali¬ 
fications of the nominee are kept secret. 23 The vast majority of 
appointments are accepted by the Senate with little hesitation. 

A legislative investigation is essentially a judicial act. The Con¬ 
stitution provides that “The Legislature shall pass efficient laws 
facilitating the investigation of breaches of trust and duty by all 
custodians of public funds and providing for their suspension 
from office on reasonable cause shown, and for the appointment of 
temporary incumbents of their offices during such suspension.” 24 
Investigation proceedings are instituted by concurrent resolution. 
The resolution states the reasons for the inquiry and on some 
occasions it recites the charges made against the agency under in¬ 
vestigation. It also defines the powers and duties of the in¬ 
vestigating committee. The committee formulates its own rules 
of procedure and sets its hours of meeting and adjournment. It 
has the power to issue subpoenas and compel attendance of 
witnesses; to administer oaths; and to inspect all books, records, 
and files of the department in question. It has a right to elect its 
own chairman and perfect its own organization; and to employ and 
compensate all necessary experts, stenographers, clerks, auditors, 
and other necessary employees. The Attorney-General is usually 
called upon to assist the committee in its activities. The committee 
is required to keep a record of its proceedings and to report its 
findings and recommendations to the houses for consideration. 25 

22 Ibid., Art. IV, sec. 12. 

23 Legislative Manual, 42d Leg., 480 (1931). 

24 Constitution, Art. IV, sec. 25. 

25 A typical resolution initiating an investigation may be found in Laws, 
41st Leg., reg. sess., 739 V 43 (1929)- 


42 


GOVERNMENT OF TEXAS 


The Legislature arranges for the inauguration of the Governor 
and Lieutenant-Governor by concurrent resolution. The two houses 
meet in joint session in the Hall of the House of Representatives 
at high noon on Tuesday after the organization of the Legislature 
for the purpose of witnessing the administering of the oath of 
office to the Governor-elect and Lieutenant-Governor-elect. 26 After 
the Governor is sworn in, he delivers his inaugural address, in 
which he outlines his policies and solicits the cooperation of mem¬ 
bers of the Legislature in carrying out his program. 

The Constitution provides that the Governor, Lieutenant-Gover¬ 
nor, Comptroller, Treasurer, Commissioner of the General Land 
Office, and the Attorney-General shall be elected by the people. 
The returns of every election for these officials are sent to the 
Secretary of State, who delivers those of the Governor and Lieu¬ 
tenant-Governor to the Speaker of the House of Representatives 
during the first week of the session, and they are canvassed in the 
presence of both houses of the Legislature. In case of a tie in any 
of the contests, the Legislature has the right to make a choice. Con¬ 
tested elections in the above offices are determined by both houses 
in joint session. 27 

The members of the Legislature have certain privileges granted 
to them as a result of their connection with the government. They 
are exempt from arrest during the sessions of the Legislature, and 
in going to and from the session, except in cases of treason, felony, 
or breach of the peace. 28 Since the members are immune from ar¬ 
rest, each house has the authority to punish its members for dis¬ 
orderly conduct, and with the consent of two-thirds, to expel a 
member, but not a second time for the same offense. 29 Each house 
has the authority to judge the qualifications and election of its own 
members, and under the Constitution the Legislature has a right to 
pass laws relating to the determination of contested elections. 30 

Another important judicial power of the Legislature is that of 
impeachment. All officers of the Executive Department, the judges 
of the Supreme Court, Courts of Appeal, and district courts are 
subject to impeachment. Other officers have been added to this list 
by the Legislature. The penalty is limited to removal from office 
and disqualification from holding any office of honor, trust, or 
profit. If the offender has violated the criminal laws of the State, 

26 Constitution, Art. IV, sec. 4. 29 Ibid., Art. Ill, sec. 11. 

27 Ibid., Art. IV, secs. 1-4. 30 Ibid., Art. Ill, sec. 8. 

28 Ibid., Art. Ill, sec. 14. 


THE STATE LEGISLATURE 


43 


he is also subject to trial and punishment in the regular courts. 
The procedure is for the House of Representatives to investigate 
the conduct of officials against whom complaints have been made 
and if it finds them justified it formulates the charges in a series 
of articles of impeachment. The House considers the articles, and 
after approval by a majority of those present, a committee is ap¬ 
pointed to prosecute the charges before the Senate. The Senate 
votes on each article separately, two-thirds of those present being 
necessary for conviction. The process of impeachment is cumber¬ 
some, and has been used on very few occasions. 

The judges of the Supreme Court, Courts of Appeal, and dis¬ 
trict courts are subject to removal by address. The Governor, on 
the address of two-thirds of each house of the Legislature, shall 
remove the above-mentioned judges for wilful neglect of duty, in¬ 
competency, habitual drunkenness, oppression in office, or other 
reasonable cause which shall not be sufficient ground for impeach¬ 
ment. In such instances the causes of removal must be stated in 
the address, and the judge has a right to a hearing before any vote 
is taken. 31 

Limitations .—The Constitution of Texas places many restric¬ 
tions on legislative powers. These limitations deal with financial 
matters, methods of procedure, and local and special laws. The 
bill of rights also operates as a restriction on legislative powers and 
as a guarantee of the fundamental rights of person and property. 

The financial restrictions define the purposes for which taxes 
may be levied and the purposes for which debts may be created. 
The credit of the State may not be extended by the Legislature to 
any person, association, or corporation, and the power to tax 
corporations can not be surrendered or suspended. Taxes may be 
collected for public purposes only and must be equal and uniform. 
The Constitution confines appropriations to a two-year period, for¬ 
bids the borrowing or diversion of special funds, and prohibits the 
exemption from taxation of the property of the inhabitants of coun¬ 
ties and cities, except by a two-thirds vote of each house of the 
Legislature. 32 The power to levy taxes is limited to the following 
purposes: the payment of interest on bonded debt, the erection and 
repair of public buildings, the payment of the sinking fund, the sup¬ 
port of public schools and higher institutions of learning, the pay¬ 
ment of the cost of collecting and assessing the revenue, the pay- 

31 Constitution, Art. XV, secs. 1-8. 

32 Ibid., Art. Ill, secs. 49-56; Art. VIII, secs. 1, 3, 4, 6, 7, 10. 


44 


GOVERNMENT OF TEXAS 


ment of all employees of the State Government, the support of 
eleemosynary institutions, the enforcement of quarantine regula¬ 
tions, and the protection of the frontier. 33 

The limitations on procedure are enumerated at length in the 
Constitution. Two-thirds of each house constitutes a quorum. Each 
house must keep a journal of its proceedings, and yeas and nays 
must be entered in the journal on request of three members. Bills 
must be read on three several days, but in case of imperative public 
necessity, four-fifths of the house in which the bill may be pending 
may suspend this rule. All bills for raising revenue originate in 
the House of Representatives, but the Senate may amend or reject 
them. After a bill has been considered and defeated by either house, 
no bill containing the same substance may be considered during the 
same session. Bills may contain only one subject, and that subject 
must be expressed in the title. 34 

Restrictions with regard to special and local laws are even more 
numerous than restrictions with regard to procedure. The Legis¬ 
lature is forbidden to pass any local or special law with regard 
to a long list of subjects, included among which are: the crea¬ 
tion, extension, and impairment of liens; regulating the affairs 
of counties, cities, towns, or school districts; changing the venue 
in civil and criminal cases; locating or changing county seats; 
regulating the practice or jurisdiction of, or changing the rules 
of evidence in any judicial proceeding; fixing the rate of interest; 
and giving effect to invalid wills or deeds. In all cases where a 
general law can be made applicable, no local or special law may be 
enacted. 35 

Twenty states have further restricted the legislative powers 
through the adoption of the initiative and referendum. These are 
devices of direct legislation employed to secure legislation on 
matters with respect to which the legislative bodies have failed 
or declined to act. Texas uses only the compulsory referendum 
on constitutional amendments. The power of the Legislature has 
suffered by the inclusion in the Constitution of many matters that 
are legislative in character. 


PROCEDURE 

Organization for Work .—In the initial organization of the 
House of Representatives, the Secretary of State presides until 

S5 Ibid., Art. Ill, sec. 56. 


33 Constitution, Art. Ill, sec. 48. 

34 Ibid., Art. Ill, secs. 10, 12, 29-41. 


THE STATE LEGISLATURE 


45 


the election of the presiding officer by the House, who is called 
the Speaker. He exerts more influence over legislation than any 
other individual member of the Legislature. By his power of recog¬ 
nition he may recognize a member who addresses the chair and 
allow him the privilege of the floor. It is possible for the Speaker 
to use this power for political purposes, and recognize only such 
persons as he pleases. “He may use this to give advantage to 
those of the same opinion as himself by according them recog¬ 
nition, and may punish a refractory member by persistently re¬ 
fusing to recognize him and thereby deny him the privilege of 
speaking or of offering motions.” 36 

Included under the Speaker’s power of appointment is his power 
to appoint an Acting Speaker in addition to the appointment of 
regular committees. He may make up the committees to suit 
his own views and to promote his own policies. “By appointing 
his most trusted associates to the chairmanship of the most im¬ 
portant committees, he determines the character of the party 
leadership.” 37 

One of the most important functions of the Speaker is to apply 
parliamentary law and to enforce and pass upon rules of the 
House. Dodds states that a clever Speaker can frequently avoid 
a direct vote on a measure, which he wishes to kill, by skillful 
rulings on incidental motions or on points of order. 38 Any mem¬ 
ber, however, may appeal to the House from the ruling of the 
Speaker; in most instances of appeal, the ruling of the chair 
is sustained. Luce answers Dodds’s criticism by saying that “any¬ 
thing like habitual distortion either of special rules or general 
parliamentary law • would result in chaos, and chaos is not char¬ 
acteristic of our assemblies.” 39 

A fourth important prerogative of the Speaker is the power 
of reference. He refers a bill to the committee to which he thinks 
it should be assigned. In the exercise of this authority, he may 
determine the fate of an important measure. A great deal of 
legislation rests with the committees; they may report a bill out 
favorably or they may kill it in the committee room. 

Pending organization, the Senate is presided over by the out¬ 
going Lieutenant-Governor. The powers of the Lieutenant-Gov¬ 
ernor, as President of the Senate, are almost as extensive as those 

36 F. G. Bates and O. P. Field, State Government, 153 (1928). 

37 A. N. Holcombe, State Government, 3d ed., 295 CI 93 1 ) - 

38 H. W. Dodds, Procedure in State Legislatures, 102 (1918). 

30 R. Luce, Legislative Procedure, 463 (1922). 


46 


GOVERNMENT OF TEXAS 


of the Speaker of the House. The Senate elects a President pro 
tempore, who performs the duties of President in case of the 
absence or disability of that official. Other officials and employees 
selected by the Senate and House include the secretary (called 
chief clerk in the House), journal clerks, calendar clerks, post¬ 
mistress, sergeant-at-arms, engrossing clerks, enrolling clerks, 
doorkeepers, chaplains, parliamentarians, and pages. 

Rules .—After the selection of the officials, each house adopts 
its own rules of procedure. The two houses also adopt joint rules 
for guidance in matters affecting the business of both. The rules 
are too complicated to permit of full explanation here. Only 
experienced members understand them, and frequently it is very 
difficult for the presiding officer to interpret them. Some of the 
more important rules deal with duties and rights of presiding 
officers and other officials, the work of committees, questions 
of privilege, decorum and debate, voting, motions, previous ques¬ 
tions, resolutions, bills, amendments, committee of the whole, or¬ 
der of business, and suspension of rules. 

Steps in Passage of Bills .—The rules provide for the definite 
progress of a bill through the Legislature. The actual procedure 
does not differ very greatly in the two houses. House bills may 
be introduced by filing with the chief clerk or they may be of¬ 
fered from the floor. The clerk reads the caption of the bill, 
after which it is referred by the Speaker to the appropriate com- 
jnittee. All bills must be reported by the committees within six 
days, unless the House consents to an extension of the time 
limit. The committee may pass the bill out in its original form, 
amend it, or even offer a substitute measure. When it is favor¬ 
ably reported, it is printed and placed on the calendar. Bills on 
which unfavorable action is taken by the committee may be printed 
and placed on the calendar by order of the House. 

The House considers the bill on second reading; on this occa¬ 
sion it may be read in full. It is then debated and such amend¬ 
ments are added as are favorably passed on by the House. If it 
fails to pass, it may be brought up for reconsideration in ac¬ 
cordance with the rules; if a majority vote is recorded for the 
bill it is “passed to engrossment.” The measure then comes up 
for third reading and final passage. During third reading it can 
be amended only by a two-thirds vote. It must be read on three 
several days, unless it carries the emergency clause, in which 


THE STATE LEGISLATURE 


47 


case the constitutional rule may be suspended by a four-fifths 
vote. 

The measure is then sent to the Senate, where it goes through 
the same procedure. If the Senate passes it without amendments, it 
comes back to the House and goes to the enrolling clerk. If the 
Senate adds amendments and the House fails to agree, a confer¬ 
ence committee is appointed to adjust the differences. The con¬ 
ference committee makes its report, and if the report is accepted 
by both houses, the bill is sent to the enrolling room, and is later 
examined by the committee on enrolled bills. The measure is read 
by caption in both houses, signed by the Speaker and the Presi¬ 
dent of the Senate, and transmitted to the Governor. In case the 
Governor vetoes the bill, it may be passed over his veto by a 
two-thirds vote of those present in each house. All bills become 
law in ninety days after the adjournment of the session at which 
they were enacted unless they contain the emergency clause, and 
are passed by a two-thirds vote of all the members elected to 
each house, in which case they become effective with the Gov¬ 
ernor’s signature. 40 

Resolutions go through the same procedure as bills. Resolu¬ 
tions are of three types: simple, concurrent, and joint. A simple 
resolution is a resolution which affects only the house which 
adopts it; it does not require the Governor’s signature. Simple 
resolutions deal with such matters as adoption of rules of pro¬ 
cedure, calls for information from administrative departments, 
and invitations asking a former member to address the house. 
Both concurrent and joint resolutions must be passed by both 
houses and submitted to the Governor. Concurrent resolutions deal 
with such matters as the acceptance of an act of Congress, the 
adoption of joint rules, and the time for adjournment. Proposed 
amendments to the Constitution take the form of a joint resolution. 

The electric voting machine in the House is a great aid in speed¬ 
ing up procedure. Ordinarily it takes a clerk at least fifteen min¬ 
utes to call the roll and record the vote in the House. But with 
the aid of the machine the average time required is only forty-five 
seconds. Use of the voting machine results in a tendency to destroy 
individual initiative; a member neither interested nor familiar with 
the bill in question sometimes watches the lights and, votes with the 
majority; consequently, the vote does not always express the opinion 

40 Legislative Manual, 42d Leg., 435 - 44 ° (I 93 1 )- 


48 GOVERNMENT OF TEXAS 

of the individual. Of course, the same thing could occur under the 
old method. 

Committee System .—Dodds says that our state legislatures have 
lost much of their deliberative character, and that the real work 
upon which the quality of legislation depends is fundamentally 
the work of the committees. “With them rests the burden of sift¬ 
ing from the innumerable bills presented those worthy of con¬ 
sideration by the whole house, and upon them is laid the duty of 
revising, amending, and presenting these measures in what is usu¬ 
ally their final form. They are the only agents, as yet developed in 
this country for this purpose, upon which responsibility can be 
lodged.” 41 

There are several types of committees: special committees, com¬ 
mittee of the whole, standing committees, and joint committees. 
Special committees are appointed for a specific purpose—as com¬ 
mittees of conference or an investigating committee. They are fre¬ 
quently employed to take charge of celebrations and are very often 
joint committees. 

The House goes into the committee of the whole during the dis¬ 
cussion of revenue and appropriation measures. In forming the 
committee of the whole, the Speaker calls some other member 
to the chair; the bill is read and amendments are considered. When 
the debate has closed and all amendments have been voted upon, 
the Speaker resumes the chair and the committee reports its rec¬ 
ommendation back to the House. The motion is then on the adop¬ 
tion of the recommendation. 42 

In the House there are thirty-eight standing committees, and 
in the Senate there are thirty-six. The size of the Senate com¬ 
mittees is determined by the President; the size of the House com¬ 
mittees is determined by the rules of the House at five, eleven, and 
twenty-one members. Several members of the House serve on five 
committees, and some Senators serve on as many as ten com¬ 
mittees. 43 

Joint committees are appointed as either select or standing com¬ 
mittees to consider subjects on which united action is desirable. In 
Massachusetts and other New England states all standing com¬ 
mittees are joint committees. It would be an important advance in 
procedure for Texas to adopt the joint committee system. The out- 

41 Dodds, op. cit., 36. 

42 Legislative Manual, 42d Leg., 416-418 (1931). 

43 Ibid., 339 - 346 , 476 - 479 , 525 - 529 , 534 - 537 - 


THE STATE LEGISLATURE 


49 


standing advantages of this system are that duplication of work 
and bills is avoided; the importance of the committee is enhanced; 
committee meetings are of greater significance; and those persons 
who are interested in proposed legislation do not have to appear 
twice before separate committees. 

The committee load is very unequally distributed. The most 
important committees have too much to do and some committees 
have practically nothing to do. The most heavily burdened com¬ 
mittees of the House in recent sessions have been the committees on 
criminal jurisprudence, judiciary, appropriations, state affairs, rev¬ 
enue and taxation, highways and motor traffic, and education. 
With regard to the crowded calendar of some committees and the 
absolute uselessness of others, Dodds says: 

Such an endless multiplication of committees would of course be 
impossible if it were not that the burden of work is confined to a few 
of the more important while others meet but irregularly throughout 
the session. Everywhere the committees on appropriations, judiciary, 
and municipal affairs will be found crowded with work. Of less im¬ 
portance, although with plenty to do, will be found committees dealing 
with agriculture, banking, county affairs, education, corporations, rail¬ 
roads, fish and game, and roads and bridges. Then follow the com¬ 
mittees whose work is almost negligible. ... Of the thirty-eight com¬ 
mittees of the Ohio House of 1915 there were sixteen which considered 
less than ten bills each. ... A few committees are overwhelmed; others 
never meet. 44 

The chief function of the committee is to obtain all possible 
information on subjects under consideration. In order to accom¬ 
plish this purpose, public hearings are granted by the chairman. 
Administrative officials and citizens appear before the committee 
and speak for or against pending legislation. These public hear¬ 
ings could be productive of great good, but in most instances the 
results are not beneficial. While far from perfect, the committee 
system has the advantage of bringing the individual citizen in 
contact with the lawmaking body of the government. 

CRITICISMS AND SUGGESTIONS 

Inexperience of Members .—“There is hardly any kind of intel¬ 
lectual work,” said John Stuart Mill, “which so much needs to be 
done not only by experienced and exercised minds, but by minds 
trained to the task through long and laborious study as the business 

44 Dodds, op. cit., 40-41. 


50 


GOVERNMENT OF TEXAS 


of making laws.” 45 It is seldom that the membership of a legislature 
comes up to the standard set by Mill. Many of the legislators have 
not enjoyed a training and experience to qualify them for the 
“business of making laws.” Members of the Texas House of Rep¬ 
resentatives ordinarily serve no more than two terms, while Sena¬ 
tors usually retire after two four-year terms. 

In bettering the legislative product, increasing the ability of 
legislators is fundamental. Changed electoral methods, such as pro¬ 
portional representation, have been suggested. Undoubtedly the 
restoration of the Legislature and its members to a position of 
power and dignity would attract our most able citizens to the 
service of the State in the Legislature. 

Leadership .—Directly related to the problem of personnel is 
that of leadership. “The legislatures . . . have done nothing to 
develop from among themselves leaders who shall be responsible 
as such to the people, and the public is suffering from the re¬ 
sulting aimlessness of legislative activities.” 46 The Texas Legis¬ 
lature is no exception to this statement. The guidance and di¬ 
rection which the Legislature does receive is from the Speaker, 
the President of the Senate, and the chairmen of the important 
committees. Occasionally blocs are organized under the leadership 
of outstanding members, but these blocs are usually short-lived. 
The prohibition and anti-prohibition blocs, the education bloc, and 
the farm bloc have at times been very important influences in legis¬ 
lation. Occasionally the Legislature accepts the leadership of the 
Governor, and he becomes a positive force in legislative matters. 
Under these circumstances, administration floor leaders working 
under the direction of the Governor make an effort to carry out the 
Governor’s policies. A Lieutenant-Governor once made the state¬ 
ment that the failure on the part of the Texas Legislature to carry 
out a constructive program with regard to the major problems 
under consideration was due to absence of effective leadership. 

The Question of Deliberation .—It has been stated that the Texas 
Legislature is no longer a deliberative body; that careful considera¬ 
tion of important measures is almost unknown. This rush is espe¬ 
cially noticeable at the end of the session, when hasty and ill-consid¬ 
ered legislation is turned out in enormous quantities. Some states 
have taken steps to avoid this rush at the end of the session. In 
Massachusetts the joint committee system and the rules facilitate 

45 J. S. Mill, Representative Government (Everyman ed.), 235 (1922). 

46 Dodds, op. cit., 100. 


THE STATE LEGISLATURE 


51 


the prompt handling of all measures. The Legislature starts its ses¬ 
sion in January. Committees must report all measures not later 
than the second Wednesday in March. Two states, California and 
West Virginia, have adopted the “split session.” Almost all bills 
are introduced during the first thirty days; the Legislature then 
takes a recess of thirty days, which allows time for the committees 
and members to study the bills very carefully. In California, no 
new bills can be introduced after the Legislature reconvenes, with¬ 
out the consent of three-fourths of the members. 

It was the intention of the framers of the constitutional amend¬ 
ments of 1930 that they should provide a method of procedure 
which would insure more deliberation in the passage of laws. But 
the Legislature has found the methods prescribed by the amend¬ 
ments unworkable in practice and has liberalized its rules by the 
use of the “four-fifths” proviso. Generally speaking, there has 
been no noticeable change from the procedure formerly followed. 47 

Committee Work Perfunctory .—One of the outstanding defects 
of legislation in Texas is the committee system. Committee meet¬ 
ings are not allowed during sessions of the House. Many members 
hold appointments on several committees, and in many instances 
a member reports for roll call on one committee and then attends 
the session of the committee in which he is most interested. Careful 
consideration of a measure is unusual. Hearings are held, but in a 
great many instances interested parties do not attend, very little 
publicity being given to the time and place of meeting. Meetings 
are held during the noon recess, after adjournment in the after¬ 
noon, and at night. A President pro tempore of the Senate ex¬ 
pressed very clearly the prevailing opinion of the work of com¬ 
mittees when he said: “The operation of the committee system is 
disgusting. I have attended but one satisfactory committee meeting 
during the entire session.” Of course, Texas is not alone in this. 

The Lobby .—In general the lobby includes all persons who 
frequent legislative halls for the purpose of influencing legislation. 
An eminent authority refers to the professional lobbyists as “a class 
of adjunct lawmakers, sometimes called the third chamber, under 
pay of persons, societies, or interested corporations.” 48 In some of 
its phases, lobbying is not objectionable; it is even essential and 
necessary under our present system of legislation. This is espe- 

47 Dallas Morning News, January 25, 31, February 2, 1933. 

48 P. S. Reinsch, American Legislatures and Legislative Methods, 290 

(1907). 


52 


GOVERNMENT OF TEXAS 


dally true of the lobbyist who represents the dtizenship and is 
not a paid agent of special interests. 

Private interests seek to influence pending legislation; they em¬ 
ploy the best talent available to argue their cases before committees; 
they even draft bills and secure their introduction. Corporations 
have a right to influence legislation in a legitimate way. Many states 
have passed laws regulating the activities of the lobby. The Wiscon¬ 
sin law is probably one of the most effective pieces of legislation on 
the subject. 49 It requires the lobbyist to register with the Secre¬ 
tary of State, giving his name, occupation and residence, the name 
and business address of his employer, the length of time that em¬ 
ployment is to continue, and the special subject or subjects of legis¬ 
lation to which the employment relates. A stringent anti-lobbying 
law was introduced in the Forty-first Legislature of Texas, but the 
committee failed to make a favorable report and the bill never came 
up for discussion in either house. Several other states have passed 
laws against the lobby, but very little has been accomplished, and 
the lobby continues to be “one of the numerous unsolved problems 
of American state government.” 50 

Legislative Reference Bureau and Bill Drafting. —Texas, fol¬ 
lowing the example of other states, has established a legislative 
reference division of the State Library as an aid in securing infor¬ 
mation on various subjects of legislation. Its purpose is to place at 
the disposal of the legislator such information as he may require 
for any legislative proposal that he may have in view. 

The statute creating the legislative reference library requires the 
librarian to assist members of the Legislature in drafting bills and 
resolutions, but owing to the lack of an adequate staff this function 
has never been performed. In a recent study the American Bar 
Association recommended the establishment of both reference li¬ 
braries and bill-drafting bureaus. 51 The Texas Senate has employed 
a former Assistant Attorney-General to aid the Senators in draft¬ 
ing laws. It is hoped that Texas will soon create a regular drafting 
bureau. This bureau should be a permanent group of experts devot¬ 
ing their entire time and attention to the drafting of measures, and 
should be at the service of legislators, citizens, associations, and 
corporations. 52 

49 Wisconsin Statutes, I, 2279-2281 (1925). 

50 Ogg and Ray, op. cit., 745. . 

51 C. G. Haines and B. M. Haines, Principles and Problems of Government, 
rev. ed., 327 (1926). 

62 See recommendations of the Joint Legislative Committee on Organization 
and Economy, infra, Ch. V. 


THE STATE LEGISLATURE 


53 


The Governor and the Legislature .—The relation of the Gov¬ 
ernor to the Legislature will be discussed in a succeeding chapter. 
One of the important features of the Model State Constitution 
may be noted here. It disregards the theory of checks and balances 
and provides for a closer coordination between the legislature and 
the executive. It provides that the governor and heads of the ex¬ 
ecutive departments shall be entitled to seats in the legislature and 
have the privilege of introducing bills and taking part in the discus¬ 
sion of measures, but without the right to vote. 53 

REFERENCES 

Among the standard general works on the legislature and legislation 
are: H. W. Dodds, Procedure in State Legislatures, Supplement to the 
Annals (May, 1918) ; Robert Luce, Legislative Procedure (1922) and 
Legislative Assemblies (1924) ; P. S. Reinsch, American Legislatures 
and Legislative Methods (1907). Chapters on the state legislature are 
to be found in the general texts on American government and state 
government. See also Judd and Hall, The Texas Constitution, Chs. IV, 
V. A series of articles by Harry Benge Crozier on the problems of 
reapportionment has been cited. Original sources on this subject in¬ 
clude the Laws, the Journals of the two houses, and the Legislative 
Manual. The original records of the Legislature are preserved in the 
office of the Secretary of State. The Texas Almanac contains informa¬ 
tion relating to the personnel of the Legislature, the district which each 
represents, the population of the districts, etc. Current happenings in the 
Legislature are chronicled in the larger newspapers of the State, while 
at the close of each session they usually print a tabulation of all the laws 
passed by that session. A significant analysis of the legislative process 
is that by Tom Finty, Jr., ‘‘Our Legislative Mills: Texas Makes Haste,” 
National Municipal Review, XII, 649-654 (1923). 

53 A Model State Constitution, Sec. 47 (1922). 


CHAPTER IV 

THE STATE EXECUTIVE 

The Constitution provides that the executive department of the 
State “shall consist of a Governor, who shall be the Chief Execu¬ 
tive Officer of the State; a Lieutenant Governor, Secretary of 
State, Comptroller of Public Accounts, Treasurer, Commissioner 
of the General Land Office and the Attorney General.” 1 In ad¬ 
dition to these officers, numerous other officials, boards, and com¬ 
missions, most of them of statutory origin, belong to what is 
commonly called the “state administration” and carry into effect 
the public policy which has been enacted into law. 2 In this chapter 
we shall deal with the constitutional executive officers, reserving 
for another chapter the treatment of the State administration. 

THE GOVERNOR 

Election, Term, and Compensation .—The Governor, as well as 
the other officers of the executive department, except the Secretary 
of State, is elected by the qualified voters of the State at the time 
and places of election for members of the Legislature; i. e., at the 
general election held on the first Tuesday after the first Monday in 
November of even-numbered years. 3 Candidates for Governor and 
other State elective officers are nominated at a primary election held 
on the fourth Saturday in July of even-numbered years, by political 
parties that cast one hundred thousand votes or more at the last 
general election. A political party whose nominee for Governor in 
the preceding general election received as many as ten thousand 
and less than one hundred thousand votes has the choice of nomi¬ 
nating State, district, and county officers by convention or primary 
elections. A majority of all the votes cast at the primary election is 
necessary for the nomination of candidates for State and district 
offices. If no candidate has a majority, a second primary election is 

1 Constitution, Art. IV, sec. I. 

2 Frank M. Stewart, Officers, Boards, and Commissions of Texas, Univer¬ 
sity of Texas Bulletin No. 1854 (1918). 

3 Constitution, Art. IV, sec. 2; Revised Civil Statutes, I, art. 2930 (1925). 

54 


THE STATE EXECUTIVE 


55 


held on the fourth Saturday in August succeeding the first primary, 
and only the names of the two candidates who received the highest 
numbers of votes for any office in the first primary are placed on 
the ballot at the second primary. 4 

Returns of the election for Governor and Lieutenant-Governor 
are prepared by each county judge, sealed, and transmitted to the 
capital, directed to the Secretary of State, who delivers them to the 
Speaker of the House of Representatives as soon as the Speaker 
is chosen. Committees are appointed by the presiding officers of 
both houses of the Legislature to tabulate the returns. A report is 
made at a joint session of the two houses. A plurality is sufficient 
to elect. If two or more persons have the highest and an equal 
number of votes, one of them is chosen immediately by joint vote 
of both houses of the Legislature. Contested elections for the elec¬ 
tive executive officers are tried and determined by both houses of 
the Legislature in joint session. The Governor and Lieutenant- 
Governor are inaugurated, in the presence of both houses, and 
with appropriate ceremonies, on the first Tuesday after the organi¬ 
zation of the Legislature or as soon thereafter as practicable. 5 

Qualifications required by the Constitution for the office of Gov¬ 
ernor are: age of thirty years, citizenship of the United States, 
and residence in the State for at least five years immediately pre¬ 
ceding the election. Members of Congress and officers of the 
United States, of any other state, or of a foreign government are 
ineligible to the office of Governor or any other office of profit or 
trust in the State. During his term the Governor may not hold any 
other office, civil, military, or corporate. 6 The courts, however, 
have held that such a provision does not prevent the Governor 
from serving ex officio as a member of a State board. 7 

The term of the Governor is two years, or until his successor is 
duly installed. There are no constitutional restrictions on eligibility 
for reelection, but custom has fixed the number of terms at two. 
Opposition for reelection is frequent, but seldom successful. While 
the Legislature is in session the Governor resides where its sessions 
are held, and at all other times at the capital, except when by law 
he may be required or authorized to reside elsewhere. 8 

4 Revised Civil Statutes, I, arts. 3101, 3102, 3154, 3 U 5 (1925) ; see Ch. IX. 

B Constitution, Art. IV, secs. 3, 4; Revised Civil Statutes, I, arts. 3036, 3066 

(1925). 

6 Constitution, Art. IV, secs. 4, 6; Art. XVI, sec. 12. 

7 Arnold v. State, 9 S. W. 120 (1888); Missouri, Kansas & T. Ry. Co. 
of Texas v. Shannon, 100 S. W. 138 (1907). 

8 Constitution, Art. IV, secs. 4, 13. 


56 


GOVERNMENT OF TEXAS 


As compensation for his services the Governor receives “an an¬ 
nual salary of $4,000 and no more, and shall have the use and occu¬ 
pation of the Governor’s Mansion, fixtures and furniture.” 9 This 
salary is less than that allowed the Governor under several earlier 
constitutions, and is also less than that allowed by the Legislature 
for many of the Governor’s important appointees. The Legislature 
has long realized the inadequacy of the compensation, and has re¬ 
peatedly submitted for popular approval amendments to the Con¬ 
stitution increasing the salary of the Governor and other executive 
officers. All such amendments have failed. The Governor is not 
allowed to “practice any profession, and receive compensation, re¬ 
ward, fee, or the promise thereof for the same; nor receive any 
salary, reward or compensation or the promise thereof from any 
person or corporation, for any service rendered or performed dur¬ 
ing the time he is Governor, or to be thereafter rendered or per¬ 
formed.” 10 

Appropriations are made biennially for the payment of certain 
expenses in connection with the maintenance of the Governor’s 
Mansion. However, it has been held by the courts that expenses for 
groceries for the Governor and his family can not be paid out of 
such appropriations. 11 

Removal and Succession .—The Governor may be removed from 
office only by impeachment. The power of impeachment is vested in 
the House of Representatives, and trial is before the Senate, sit¬ 
ting as a court of impeachment. Conviction requires a two-thirds 
vote of the Senators present. “Judgment in cases of impeachment 
shall extend only to removal from office, and disqualification from 
holding any office of honor trust or profit under this State. A Party 
convicted on impeachment shall also be subject to indictment trial 
and punishment, according to law.” If articles of impeachment are 
preferred against the Governor, he is suspended from exercising 
the duties of his office during the impeachment trial. 12 

Thus far in the history of our State only one Governor has been 
impeached. 13 The Supreme Court has upheld the Senate’s judg- 

0 The Forty-third Legislature appropriated for the Executive Department, 
including the Governor’s Mansion, $31,664 for 1933-34 and $30,664 for 1934- 
35. General Laws, 43d Leg., reg. sess., 471-472 (1933). 

10 Constitution, Art. IV, secs. 5, 6. 

11 Terrell, Comptroller of Public Accounts, v. Middleton, 187 S. W. 367 
(1916). 

12 Constitution, Art. XV, secs. 1, 2, 3, 4, 5; Revised Civil Statutes, II, arts. 
5961-5963 (1925). 

12 F. A. Ogg, “ Impeachment of Governor Ferguson,” American Political 
Science Review, XII, 111-115 (1918). 


THE STATE EXECUTIVE 


57 


ment of impeachment in this case. 14 The recall is not employed as 
a constitutional method for removal of State officers in Texas. 

Succession to the office of Governor is vested in the Lieutenant- 
Governor. “In case of the death, resignation, removal from office, 
inability or refusal of the Governor to serve, or of his impeach¬ 
ment or absence from the State, the Lieutenant Governor shall 
exercise the powers and authority appertaining to the office of 
Governor until another be chosen at the periodical election, and 
be duly qualified; or until the Governor impeached, absent or dis¬ 
abled, shall be acquitted, return, or his disability be removed.” In 
case of the death of the Lieutenant-Governor while filling the 
vacancy in the office of Governor, or of his resignation, refusal 
or inability to serve, removal from office, impeachment, or absence 
from the State, the President pro tempore of the Senate shall ad¬ 
minister the government until superseded by a Governor or Lieu¬ 
tenant-Governor. When the Lieutenant-Governor or the President 
pro tempore of the Senate administers the government as Gover¬ 
nor, each receives the same compensation as the Governor would 
have received had he been employed in the duties of his office. 
While so employed each is likewise subject to all of the constitu¬ 
tional restrictions and inhibitions imposed on the Governor. 15 

The Governor's Administrative Powers .—The Constitution des¬ 
ignates the Governor as “the Chief Executive Officer of the State.” 
It also adds that “He shall cause the laws to be faithfully exe¬ 
cuted. . . 16 It is an almost uniform rule of state constitutional 

law that these provisions do not confer upon the Governor any 
specific power. In other words, he has little or no inherent execu¬ 
tive power under these provisions. “The rule of delegated powers 
and strict construction has been nearly everywhere applied to the 
Governor, so that legally he is not usually considered as having 
any particular power unless it is granted to him, in the constitution 
or statutes, either expressly or by necessary implication.” 17 

The Governor’s powers may be classified according to source 
as legal or extra-legal. Legal powers are those imposed expressly 
or by implication by the Constitution and statutes of the State. 
Extra-legal powers are those derived from the Governor’s position 
as political leader, and from his personal political influence. Ac¬ 
cording to character the Governor’s power may be classified as 

14 Ferguson v. Maddox, 263 S. W. 888 (1924). 

15 Constitution, Art. IV, secs. 16, 17, 18. 

18 Ibid., Art. IV, secs. 1, 10. 

17 J. M. Mathews, American State Government, 229 (1924). 


58 


GOVERNMENT OF TEXAS 


administrative, legislative, and special. We shall discuss first the 
Governor’s legal powers. 

i. The Power of Appointment. Of the executive officers men¬ 
tioned in the Constitution, only one is appointed by the Governor, 
the Secretary of State. Three other heads of departments—the 
Superintendent of Public Instruction, the Commissioner of Agri¬ 
culture, and Railroad Commissioners—are elected by the voters. 
With these exceptions, the Governor has the power to fill by ap¬ 
pointment numerous offices, boards, and commissions which con¬ 
stitute the greater part of the State administration. 18 The Governor 
also has power to appoint some judicial officers, including the 
Commission to assist the Court of Criminal Appeals and part of 
the membership of the Advisory Judicial Council. A few local 
officials are appointed by the Governor, as notaries public, public 
weighers in certain cities, pilot boards, and wreck-masters in each 
maritime county of the State. 19 

Vacancies in State and district offices, except those of members 
of the Legislature, are filled by appointment of the Governor and 
confirmation by the Senate, if that body is in session. The names 
of recess appointees must be sent to the Senate during the first 
ten days of the session next following the nomination. If the Sen¬ 
ate rejects the nomination, the office becomes vacant immediately, 
and the Governor is required to make further nominations with¬ 
out delay until a confirmation takes place. If there is no confirma¬ 
tion during the session of the Senate, the Governor can not appoint 
to fill the vacancy any person who has been rejected by the Sen¬ 
ate, but he may appoint some other person to fill the vacancy until 
the next session of the Senate, or until the regular election to the 
office. Failure of the Senate to take any action whatsoever on the 
nomination does not affect the status of the incumbent, the Attor¬ 
ney-General has ruled. Appointments to vacancies in elective offices 
shall continue only until the next general election. 20 

The appointing power of the Governor, however, is subject to 
several limitations. It does not extend to the heads of seven State 
departments, who are chosen by popular vote. This method tends 
to make these officers independent of the Governor and to dis¬ 
integrate the administration. Confirmation by the Senate is also 
required for all appointments of the Governor. It is doubtful 

18 Stewart, op. cit., passim. 

10 Revised Civil Statutes, II, arts. 5681, 5949, 6972, 8310 (1925) ; Constitu¬ 
tion, Art. IV, sec. 26. 

20 Constitution, Art. IV, sec. 12. 


THE STATE EXECUTIVE 


59 


whether this requirement serves any useful purpose, and its aban¬ 
donment is recommended by most writers on state government. 21 
Another device which is commonly used in appointments to State 
boards and commissions is the practice of overlapping terms, the 
appointment of part of the membership every year or two years. 
Technical qualifications are required by statute for appointment 
to certain offices; e. g., State Health Officer, State Librarian, and 
others. The members of some boards must represent different 
economic interests—e. g., Industrial Accident Board—or must come 
from different geographical sections of the State—e. g., Board of 
Water Engineers. Part of the membership of certain boards must 
be women; e. g., Board of Regents of the College of Industrial 
Arts. A few professional examining boards are appointed from 
lists submitted by the professional association; e. g., the Board of 
Veterinary Medical Examiners from a list submitted by the State 
Veterinary Medical Association. Appointments by the Governor 
and by heads of departments are in no way limited by a civil serv¬ 
ice law. Texas does not recognize the merit system in her State 
administration. 22 

2. The Power of Supervision. The Constitution makes it the 
duty of the Governor to cause the laws to be faithfully executed; 
yet nowhere does it give him power to enforce this duty, nor has 
such power been conferred by statute. Control of the adminis¬ 
tration is supposed to be exercised by the Governor through his 
powers of appointment and removal, but these powers are only 
nominal. The very number of administrative agencies renders real 
supervision impossible. Over the elective heads of departments 
the Governor has little control; they are independent of him and 
of each other. While the Governor receives regularly many reports 
from administrative departments and can require special reports 
at any time, and while many administrative details require his ap¬ 
proval, these instruments of control, owing to the absence of sift¬ 
ing by intermediate officials, burden the Governor with a mass of 
unnecessary details, and take his time from more important ques¬ 
tions of State policy. 

3. The Power of Removal. Removal of executive officers by 
impeachment, by the Governor on address of two-thirds of the 
Legislature, by quo warranto proceedings, and by the Governor 


21 Frank G. Bates and Oliver P. Field, State Government, 268 (1928); 
Mathews, op. cit., 232-233. 

22 Frank M. Stewart, “The Civil Service Problem in Texas,” Good Gov¬ 
ernment, XLVI, 81-85 (1929). 


60 


GOVERNMENT OF TEXAS 


alone are the four methods of removal provided by the Constitu¬ 
tion and statutes. The elective constitutional officers are removable 
by impeachment, and the Legislature is given authority to establish 
the procedure of removal for all State officers where the method 
of removal has not been provided in the Constitution. 23 

By statute several officials have been added to the list of those 
removable by impeachment—Secretary of State, Commissioner of 
Insurance, Banking Commissioner, and “all other State officers 
and heads of State departments or institutions of any kind, and all 
members, regents, trustees, commissioners having control or man¬ 
agement of any State institution or enterprise. . . 24 On address 

of two-thirds of each house of the Legislature the Governor shall 
remove the Commissioner of Agriculture, Commissioner of Insur¬ 
ance, and Banking Commissioner for wilful neglect of duty and 
other specified offenses. 25 Another section of the statutes provides 
for the trial and removal of any public officer by quo warranto 
proceedings. 26 

The Governor’s power to remove State officials is given in the 
following section of the statutes: “All State officers appointed by 
the Governor, or elected by the Legislature, where the mode of 
removal is not otherwise provided by law, may be removed by him 
for good and sufficient cause, to be spread on the records of his 
office, and to be reported by him to the next session of the Legis¬ 
lature thereafter.” 27 

It is very doubtful whether the Governor, under the authority 
of this statute, has any independent power of removal of State 
officials. In 1917 the Attorney-General ruled that the Governor 
had no power to remove a University Regent from office under 
authority of this section of the statutes. Although the statutes 
provided no specific method of removal for such officials, the 
Attorney-General held that a Regent could only be removed from 
office for causes provided by the Legislature under quo warranto 
proceedings. The law officer expressed his doubt as to the validity 
of the article, because the Constitution, Article XV, section 7, re¬ 
quires the Legislature to provide by law “for the trial and removal 
from office of all officers of this State, the modes for which have 
not been provided in this Constitution.” Any method of removal, 

23 Constitution, Art. XV, secs. 2, 7. 

24 Revised Civil Statutes, II, art. 5961 (1925). 

25 Ibid., II, art. 5964. 

26 Ibid., II, art. 6253. 

27 Ibid., II, art. 5967. 


THE STATE EXECUTIVE 


61 


therefore, which does not make provision for a trial does not 
comply with the Constitution. 28 

In 1921 the Governor sought to remove a prison commissioner. 
To secure his removal it was necessary for the Legislature to pass 
an act supplementing existing methods of removal of prison com¬ 
missioners by providing for trial in a district court on suit brought 
by the Attorney-General on the direction of the Governor. After 
a trial and appeal to the Supreme Court, the commissioner was 
removed. 29 

From this review of the methods of removal of public officials 
in Texas, it will be seen that the Governor’s power of removal is 
practically in no case capable of independent exercise.. The power 
of appointment does not imply the right to remove. Hence the 
power of removal is not an effective instrument of administrative 
control. 

Locally elected officials can not be removed by the Governor in 
any case. Governor Neff strongly urged two Legislatures to pass 
a law providing that the Attorney-General, upon direction of the 
Governor, should bring quo warranto proceedings against local 
law-enforcing officials who wilfully refused to enforce State laws. 
Influenced by a strong feeling of localism and home rule, the Leg¬ 
islature refused to pass the law. 

4. Financial Powers. The control of the Governor over the 
financial administration of the State is indirect and shadowy. His 
powers in this field have recently been strengthened by the budget 
law of 1931, which makes the Governor the responsible budget¬ 
making authority. 30 

All heads of State institutions and departments are required 
by the Constitution to keep an account of all funds received and 
disbursed from all sources, and to make a semi-annual report to 
the Governor. The Governor may require a written report from 
such officers “upon any subject relating to the duties, condition, 
management and expenses of their respective offices and institu¬ 
tions .... and may also inspect their books, accounts, vouchers 
and public funds. . . No machinery was provided until re¬ 

cently whereby the Governor could exercise more than a nominal 
control over State finances under this section of the Constitution. 

In 1929 the Forty-first Legislature created the position of State 

28 Biennial Report of the Attorney-General, 444-448 (1916-1918). 

89 Southwestern Political Science Quarterly, II, 270-271 (1921). 

80 See Ch. VI. 


62 


GOVERNMENT OF TEXAS 


Auditor and Efficiency Expert and gave that officer, acting under 
the direction of the Governor, broad powers of investigation of the 
financial affairs of the State officials. 31 

The Governor has the power to approve deficiency claims pre¬ 
sented by heads of departments and institutions and other spend¬ 
ing agencies, but the aggregate amount of deficiencies approved 
shall not exceed two hundred thousand dollars for all purposes. 32 
His control over appropriations, through the item veto, will be dis¬ 
cussed in connection with the veto power. 

5. Police Powers. The duty of regulating the acts of persons 
and the use of property in the interests of the public safety, health, 
morals, and welfare has been entrusted principally to locally 
elected law-enforcing officials, over whom the Governor has little 
control. However, the Governor has at his command the State 
militia and the State rangers. He may call out the militia to exe¬ 
cute the laws of the State and to suppress insurrections. 33 In re¬ 
cent years this body has been used for strike duty and for policing 
turbulent communities, as oil boom towns. A less expensive and 
a more satisfactory agency of law enforcement is at the command 
of the Governor—the State ranger force. This small but efficient 
body of men operates under the direction of the Governor, acting 
through the Adjutant-General. Rangers have all the powers of 
peace officers and may be used anywhere in the State in the Gov¬ 
ernor’s program of law enforcement. It is the most effective and 
direct means under the control of the Governor whereby he can 
discharge his constitutional duty to “cause the laws to be faithfully 
executed.” 34 The State Highway Patrol operates under the super¬ 
vision of the State Highway Commission. 

Not all of the control of the Governor over the administration 
is due to his legal powers. His extra-legal power or influence is of 
great importance. This influence is due in part to his legal powers 
to appoint, to remove, to require information from administrative 
officers concerning their departments, to inspect their books and 
accounts, and to his position as titular head or leader of his party. 
The power to fill a large number of administrative offices gives the 
Governor considerable influence with those who wish appointment 

31 See Ch. VI. 

32 Revised Civil Statutes, I, art. 4351 (1925) ; Laws, 40th Leg., reg. sess., 
232-233 (1927). 

33 Constitution, Art. IV, sec. 7; Revised Civil Statutes, II, arts. 5830, 5831, 

5889 (1925). 

Si Revised Civil Statutes, II, arts. 6560-6573 (1925). 


THE STATE EXECUTIVE 


63 


and their friends. While the legal power of the Governor to remove 
and direct administrative officers in their work is limited, the per¬ 
sonal relationships between the executive and his appointees are 
usually such that the Governor can exert a considerable influence 
over the conduct of their work. His power to require information 
and to inspect the records of administrative officers gives him the 
opportunity occasionally to expose misconduct on the part of ad¬ 
ministrative officers, sometimes leading to legal proceedings or 
investigation by the Legislature, and usually to much publicity. 
Through his power to prepare the budget, to veto items of appro¬ 
priation bills, his relation to the party organization, and his power 
to sway public opinion, there is developed a political influence 
which reaches far beyond the powers conferred upon him by law. 

The Governor’s Legislative Powers .—Although the Governor 
is nominally the chief executive authority in the State Govern¬ 
ment, he participates with the Legislature in the determination and 
formulation of the policies of the State. The Governor’s influence 
over the lawmaking process arises from his control over the or¬ 
ganization and sessions of the Legislature, his power to send mes¬ 
sages, and his power to veto acts, including items in appropriation 
bills. 

i. Control over Organization and Sessions of Legislature. The 
Governor has no legal power of control over the organization of 
the Legislature. Resignations of members of the Legislature are 
sent to the Governor, who issues a writ of election to fill the 
vacancy. 35 The time of meeting of regular sessions of the Legisla¬ 
ture is fixed by the Constitution and statutes, and hence is not 
subject to control by the Governor. 36 In some states the Governor 
has the power to adjourn the Legislature when there is a disagree¬ 
ment between the two houses as to the time of adjournment. He 
has no such power in Texas. On extraordinary occasions the Gov¬ 
ernor may convene the Legislature at the seat of government or 
at a different place in case it should be in possession of the public 
enemy or in case of the prevalence of disease there. 37 

This power to convene the Legislature in special sessions on 
extraordinary occasions is the most important control exercised 
by the Governor over the sessions of the Legislature. His procla¬ 
mation calling the session must state specifically the purpose for 
which the Legislature is convened. He can not convene the Sen- 

85 Constitution, Art. Ill, sec. 13. 37 Ibid., Art. IV, sec. 8. 

30 Ibid., Art. Ill, sec. 5. 


64 


GOVERNMENT OF TEXAS 


ate alone, as is possible in several states. When in special session 
the Legislature is limited to passing bills upon subjects designated 
in the proclamation of the Governor calling the session or pre¬ 
sented to it by the Governor after the session is convened. 38 But 
while this power to control the agenda of special sessions is of 
great importance, it is subject to certain general limitations. In the 
first place, it applies only to legislative acts and not to those which 
are executive or judicial in character, such as confirmation of ap¬ 
pointments and impeachment. 39 In the second place, the Governor 
can control only the general subjects of legislation, and not the 
details of legislation. Finally, the Governor frequently yields to 
the entreaties of members of the Legislature to submit “pet meas¬ 
ures” which were unsuccessful at the regular session. 

The power to call special sessions and to control the subjects 
of legislation can be used by the Governor to compel an unwilling 
Legislature to consider his legislative program, and by this means 
to call the attention of the public to his ideas of needed legisla¬ 
tion. In recent years the number of special sessions has materially 
increased. 

2. Messages. The Constitution requires that “The Governor 
shall, at the commencement of each session of the Legislature, and 
at the close of his term of office, give to the Legislature informa¬ 
tion, by message, of the condition of the State; and he shall rec¬ 
ommend to the Legislature such measures as he may deem expe¬ 
dient.” 40 He is also required to account to the Legislature for all 
public moneys received and paid out by him from any funds sub¬ 
ject to his order, and a statement must accompany his message. At 
the commencement of each regular session he is required to present 
estimates of the amount of money required to be raised by taxa¬ 
tion for all purposes. His messages are therefore of three kinds: 
first, a formal opening message, in which he reviews the state of 
public affairs, and makes recommendations for legislation on a 
number of subjects which he has emphasized in his campaign and 
which are frequently to be found in the party platform; second, 
special messages sent from time to time during the legislative ses¬ 
sion frequently recommending the adoption of some “administra¬ 
tion measure” ; and third, the final message upon retirement, which 
reviews the accomplishments of the administration. By invitation 

38 Constitution, Art. Ill, sec. 40; Art. IV, sec. 8. 

39 Ferguson v. Maddox, 263 S. W. 888 (1924). 

40 Constitution, Art. IV, sec. 9. 


THE STATE EXECUTIVE 


65 


of the Legislature the Governor has recently appeared in person 
to read his formal message at the beginning of the session, and also 
to address the houses informally during the course of the session. 
All communications from the Governor are printed in the daily 
journals of both houses. They are invariably discussed in the daily 
press, sometimes reprinted entirely, and usually attract a large 
measure of public interest. 

3. The Veto Power. Every bill which has been passed by both 
houses of the Legislature must be presented to the Governor for 
his approval. If he approves the bill, he signs it and files it with 
the Secretary of State. If he disapproves the bill, he returns it 
with his objections to the house in which it originated. When 
either house receives a bill disapproved by the Governor, the mes¬ 
sage is read and spread on the Journal. The house may then con¬ 
sider the question of passing the bill over the Governor’s veto at 
once, or it may postpone action to a definite time, or refer the bill 
and message to a committee. If two-thirds of the members present 
agree to pass a bill notwithstanding the Governor’s objections, it 
is sent to the other house, with the Governor’s objections and a 
certificate that it has been repassed over the Governor’s veto. If, 
after reconsideration by that house, the bill is passed by a two- 
thirds vote of the members present, it is returned to the house of 
its origin and is filed with the Secretary of State for publication 
as a law. If the bill fails to pass over the Governor’s veto in either 
house, it is filed away as dead. The votes in both houses on recon¬ 
sideration of the Governor’s vetoes must be by yeas and nays, and 
the record of members voting for and against the bill must be en¬ 
tered on the Journal of each house respectively. 

If bills are delivered to the Governor while the Legislature is 
in session, he has ten days, exclusive of Sundays, to consider them. 
Signed bills are filed with the Secretary of State, vetoed bills are 
sent back to their house of origin, and bills not signed or disap¬ 
proved by the Governor within the time prescribed become law 
automatically. The “pocket veto” is unknown in Texas. When the 
time of delivery of bills is within ten days of the final adjourn¬ 
ment of the Legislature, the Governor has twenty days, including 
Sundays, after the adjournment of the Legislature, to consider 
the bills. The Governor’s power with reference to these bills is 
absolute. His vetoes are final; they can not be reconsidered by any 
subsequent session of the Legislature. Bills vetoed by the Gov¬ 
ernor during the twenty-day period are filed with his objections 


66 


GOVERNMENT OF TEXAS 


in the office of the Secretary of State and notice is given by public 
proclamation. Bills not signed within the twenty-day limit become 
law without his signature. 41 The Governor thus possesses a nega¬ 
tive control over most of the acts of the Legislature. He may not 
be able to get his measures passed, but in most cases he can deter¬ 
mine what bills shall finally become law. He is in fact a “third 
house” in the lawmaking process. 

The indirect effects of the Governor’s veto power are also sig¬ 
nificant. The extent of his negative influence over legislation is 
not measured entirely by the actual number of vetoes. Knowledge 
that the Governor is opposed to a bill may cause it to be modified 
or prevent its passage altogether. It is not an unusual practice to 
recall bills from the executive office so that they may be changed 
to eliminate the Governor’s objections and escape a threatened 
veto. 

The Governor also has the power to veto items in appropriation 
bills. These vetoes may be reconsidered by the Legislature if it is 
in session in the same manner as any other bill. If the Legislature 
has adjourned, which is usually the case, the Governor’s vetoes 
are final. 42 No power is given the Governor to reduce the amount 
of a specific appropriation; he can only eliminate the item. The 
courts have also held that he has no constitutional authority to veto 
the language qualifying an appropriation or directing the method 
of its expenditure. 43 Where the Governor has transmitted objec¬ 
tions to items in an appropriation bill to the Legislature while in 
session, he can not file objections to other items of the bill after 
adjournment. 44 

“Governors throughout the country,” says Professor Mathews, 
“are exercising the power of vetoing items of appropriation bills 
with increasing frequency, and the number of occasions arising 
where the action of the legislature renders the exercise of this 
power necessary or desirable is also on the increase. . . . Legis¬ 
latures have sometimes, either by inadvertence or design, placed 
the Governor in an awkward and embarrassing position by ad¬ 
journing after making appropriations largely in excess of the 
anticipated revenues or of what the state treasury will bear. In 
order to preserve the financial integrity of the state and avoid a 

41 Constitution, Art. IV, sec. 14; Legislative Manual, 42c! Leg., 438-440 

(1931). 

42 Constitution, Art. IV, sec. 14. 

43 Fulmore v. Lane, 140 S. W. 405 (1911). 

44 Pickle v. McCall, 24 S. W. 265 (1893). 


THE STATE EXECUTIVE 


67 


deficit, the governor is then forced to reduce the total amount of 
the appropriations, though knowing that by so doing he will incur 
the displeasure and criticism of the persons, institutions, or in¬ 
terests who would otherwise benefit thereby. ... In cutting down 
appropriations, therefore, the governor must usually be imbued 
with a high order of courage and a deep belief in the support of 
his action by the mass of the people.” 45 

In dealing with the Legislature the Governor can use his politi¬ 
cal influence, which is often quite as real as, and sometimes more 
effective than, his formal legal powers. This influence may be due 
to his position as political leader or to the fact that the public is 
coming to look to the Governor for leadership in the formulation 
of State policies. Every Governor has his “pet measures,” and 
while he can not introduce them into the Legislature, his friends 
in the two houses can do so. After these “administration bills” are 
introduced, pressure can be brought upon the legislators for their 
enactment. Members of the Legislature are interested in appoint¬ 
ments which the Governor can make; they are interested in his 
approval of bills which they have introduced; they are interested 
in appropriations which he has the power to veto; and at special 
sessions they often want the submission of certain subjects for 
legislative consideration. And if these measures fail, the Governor 
can appeal to public opinion, and he has the advantage of being 
able to get more publicity than the Legislature. Through his power 
to control the agenda for special sessions, he can force the Legis¬ 
lature either to accept or to reject his program. From his threat 
of possible vetoes, and by the suggestion that defective bills pre¬ 
sented to him during the session be recalled for amendment, and 
from the fact that he is the sole judge as to what bills shall become 
law after the adjournment of the Legislature, the Governor has 
assumed an increasing share in legislation. While deplored by some 
as an encroachment of the executive upon the legislative province, 
the initiative of the Governor in legislation is but the natural result 
of a demand on the part of the public for leadership in policy¬ 
forming which the Legislature has not been able to produce. 

The Governor's Special Functions .— 

i. The Military Power. The Governor is commander-in-chief 
of the military forces of the State, except when they are called 
into actual service of the United States, when they are under the 


45 Mathews, op. cit., 224. 


68 


GOVERNMENT OF TEXAS 


command of the President . 46 He appoints biennially an Adjutant- 
General who is in control of the military department of the State 
subject to the Governor’s orders. Through him the Governor from 
time to time transmits his directions, rules, and regulations relat¬ 
ing to the military commissions, military forces, military stores 
and supplies, etc. The Adjutant-General has the rank of brigadier- 
general. He and twelve aides-de-camp constitute the Governor’s 
military staff. 

When an invasion of or an insurrection in the State is made or 
threatened, or when there is tumult, riot, or breach of the peace, 
or imminent danger of such, or when the Governor may deem it 
necessary for the enforcement of the laws of the State, he may 
call forth the active militia or any part of it, and if the force is 
not sufficient, he may call out such part of the reserve militia as he 
may deem necessary . 47 Use of the militia to “protect the frontier 
from hostile incursions by Indians or other predatory bands,” once 
important, is now obsolete. A county or city in which military 
forces of the State are employed in aid of the civil authority may 
be declared in a state of insurrection by proclamation of the Gov¬ 
ernor, if he thinks the maintenance of law and order will thereby 
be promoted . 48 

2. The Pardoning Power. The power of the Governor to issue 
pardons, remit fines, etc., is given in the following section of the 
Constitution: 

In all criminal cases, except treason and impeachment, he shall have 
power after conviction, to grant reprieves, commutations of punishment 
and pardons; and under such rules as the Legislature may prescribe, he 
shall have power to remit fines and forfeitures. With the advice and 
consent of the Senate, he may grant pardons in cases of treason, and to 
this end he may respite a sentence therefor, until the close of the suc¬ 
ceeding session of the Legislature; provided, that in all cases of remis¬ 
sions of fines and forfeitures, or grants of reprieve, commutation of 
punishment or pardon, he shall file in the office of the Secretary of State 
his reasons therefor. 49 

He is assisted in this work by a Board of Pardons and Paroles 
consisting of three members appointed for terms of six years. The 

46 Constitution, Art. IV, sec. 7. 

47 Sarah Ann Llewellyn, Martial Law in Texas (Master’s Thesis, Univer¬ 
sity of Texas, 1932). 

48 Revised Civil Statutes, II, arts. 5768, 5778, 5783, 5787-5790, 5830, 5889 
(1925). 

40 Constitution, Art. IV, sec. 11. 


THE STATE EXECUTIVE 69 

Board thoroughly examines every application for a pardon which 
the Governor refers to it and reports its recommendations to him. 
But the final power of pardon rests with the Governor. He may 
or may not follow the recommendation of the Board of Pardons 
and Paroles. Handling pardons is one of the most harassing duties 
of the chief executive. The report of the Joint Legislative Commit¬ 
tee on Organization and Economy said: “Probably the greatest 
single time-consuming activity of the Governor is the consideration 
of paroles and other clemency matters.” 

3. Powers as Head of the State. The Governor is the official 
channel of communication between the State and other states and 
with the Federal Government. 50 His functions in relation to the 
extradition of fugitives from justice are well known. It is the duty 
of the Governor to represent the State on many ceremonial occa¬ 
sions, to review parades, to be host to distinguished public visi¬ 
tors, and to represent the State officially at meetings outside its 
borders, such as at the annual Conference of Governors or the 
inauguration of a President. 

4. Miscellaneous Powers. The Governor has a considerable 
number of functions which defy classification. He issues procla¬ 
mations on divers subjects; appoints many unimportant local offi¬ 
cers; serves ex officio as a member of many State boards; signs 
documents by the hundreds; temporarily appoints to a vacancy in 
a United States senatorship until a candidate can be elected and 
qualified; listens to candidates for appointments and to applicants 
for pardons and paroles and their friends; grants interviews to 
the press; is photographed on the steps of the Capitol with visit¬ 
ing delegations; holds conferences with political leaders ; and makes 
speeches whenever his time permits. His is a busy office and one 
difficult to fill. “It demands sound judgment, a steady head, and 
unremitting industry. He who holds the post is much in the public 
eye and continually under the fire of criticism from the opposing 
political party. He is expected to do the work of three or four men 
and to achieve results which, owing to the division of authority 
between himself and the legislature, are not always within his 
power to secure. He is blamed when things go wrong—often when 
the blame does not belong to him. Few governors go out of office 
without their popularity diminished.” 51 

50 Ibid., Art. IV, sec. 10. 

B1 W. B. Munro, The Government of the United States, rev. ed., 490-491 

(1925). 


70 


GOVERNMENT OF TEXAS 


OTHER EXECUTIVE OFFICERS 

Lieutenant-Governor .—The Lieutenant-Governor is next in 
rank to the Governor. He is chosen at every election for Gov¬ 
ernor by the same electors and in the same manner, continues in 
office for the same time, and has the same qualifications. Electors 
are required to distinguish for whom they vote as Governor and 
for whom as Lieutenant-Governor. He is President of the Senate 
and has the right to debate and vote on all questions when the 
Senate is in Committee of the Whole. He has the deciding vote in 
case of a tie. Besides presiding over the Senate his principal duty 
is to succeed the Governor in certain circumstances. 52 As President 
of the Senate he receives the same compensation and mileage as 
Senators; while acting as Governor, the same compensation as the 
Governor. 

Secretary of State .—This official is the only one of the execu¬ 
tive officers of the State who is appointed by the Governor and 
Senate. He continues in office during the term of service of the 
Governor and receives an annual salary of $2,000, the lowest fixed 
by the Constitution. As the State’s secretary he keeps the seal of 
the State and attests the Governor’s signature to all commissions, 
proclamations, and certificates of official character. He authenti¬ 
cates the publication of the laws, is the custodian of the original 
acts of the Legislature, keeps a fair register of all the official acts 
and proceedings of the Governor, and, when required to do so, 
lays such records, papers, minutes, and vouchers before the Legis¬ 
lature or either house. 53 He is required to keep a complete register 
of all the officers appointed and elected in the State, and has charge 
of the distribution of the journals, laws, and judicial reports 
printed by order of the Legislature. At the beginning of each regu¬ 
lar session of the Legislature, the Secretary of State presides until 
a Speaker is chosen. 54 

He has certain duties to perform in connection with elections, 
including the furnishing of election supplies, receiving returns of 
elections of certain State and district offices, and serving as a mem¬ 
ber of the State election board to canvass election returns and 
declare the results. 55 

Certificates of incorporation of domestic companies and licenses 

62 Constitution, Art. IV, secs. 16, 17. 

63 Ibid., Art. IV, secs. 19, 20, 21. 

54 Revised Civil Statutes, I, arts. 4330-4341; II, art. 5424 (1925). 

65 Ibid., I, arts. 2925, 3033-3034, 3082-3083. 


THE STATE EXECUTIVE 


71 


to foreign corporations desiring to do business in the State are 
issued from his office. Franchise taxes paid by domestic and for¬ 
eign corporations are collected by his office. 56 The administration 
of the “blue sky” law has been placed in the hands of the Secretary 
of State. He serves as a member of the Intangible Tax Board. 57 

Attorney-General .—The chief law officer of the State is elected 
every two years by the voters, maintains his office at the seat of 
government, and receives an annual salary of $2,000 and fees not 
to exceed $2,000 per year. He prosecutes and defends all actions 
in the Supreme Court or the Court of Civil Appeals in which the 
State is interested. He transmits to the proper district or county 
attorney any certified account, bond, or other demand which he has 
received from the Comptroller for prosecution and suit. He has 
the power to require the district and county attorneys to report to 
him, at the close of their courts, the status of all such suits. He 
examines all county and municipal bonds and approves their va¬ 
lidity, if they are in conformity with the Constitution and laws. 
As counsel for the State the Attorney-General gives legal advice 
to the Governor, heads of departments and institutions, commit¬ 
tees of either branch of the Legislature, and county auditors upon 
any question touching the public interest, or concerning their offi¬ 
cial duties. He advises district and county attorneys in the prose¬ 
cution and defense of all actions in their courts wherein the State 
is interested. 58 The Attorney-General is a member of the Banking 
Board, Depository Board, Board to Select the Auditor for the 
Prison System, and five other such boards. 

Comptroller of Public Accounts .—The Constitution provides 
that the Comptroller of Public Accounts shall hold his office for 
the term of two years, receive an annual salary of $2,500, reside 
at the seat of government during his continuance in office, and 
perform such duties as the Legislature may require of him. The 
Constitution thus establishes the office but fails to prescribe its 
duties. By law the Comptroller has been made the principal fiscal 
officer of the State. His duties include accounting control over 
State expenditures and supervision of the accrual and collection 
of State revenues. He keeps all accounts between the State and 
the United States and all other accounts in which the State is in¬ 
terested ; audits the claims of all persons against the State; settles 

66 Ibid., I, arts. 1313, 1529; II, arts. 7084, 7085. 

67 Ibid., I, arts. 579-600; II, art. 7098. 

68 Constitution, Art. IV, sec. 22; Revised Civil Statutes, I, arts. 4394-4413 

(1925). 


72 


GOVERNMENT OF TEXAS 


the accounts of all persons indebted to the State; and draws war¬ 
rants on the Treasurer for the payment of all moneys directed 
by law to be paid out of the treasury. He serves as a member of 
the Intangible Tax Board, Board to Calculate the Tax Rate, 
Board to Select the Auditor for the Prison System, and Board of 
County and District Road Indebtedness. 59 

Treasurer .—At each biennial general election a State Treasurer 
is chosen who receives an annual salary of $2,500 fixed by the 
Constitution. It is the duty of the Treasurer to receive on the war¬ 
rants of the Comptroller of Public Accounts all moneys paid into 
the treasury of the State; to countersign and pay all warrants 
drawn by the Comptroller on the treasury; to keep accounts of 
the receipts and expenditures of the public moneys of the treas¬ 
ury, and to open an account in the treasury for all appropriations 
made by law. The Treasurer is a member of the Banking Board, 
Board of County and District Road Indebtedness, Board to Cal¬ 
culate the Tax Rate, Board to Select the Auditor for the Prison 
System, and secretary of the Depository Board. 60 

Commissioner of the General Land Office .—The General Land 
Office, established by the Constitution, is in charge of a Commis¬ 
sioner elected by popular vote for a term of two years. He re¬ 
ceives an annual salary of $2,500. He must reside at the capital 
of the State during his continuance in office. The statutes thus 
prescribe his general duties: “The Commissioner shall superin¬ 
tend, control and direct the official conduct of all subordinate 
officers of the General Land Office, and execute and perform all 
acts and things touching or respecting the public land of this State 
or rights of individuals in relation thereto, as may be required 
by law, and make and enforce suitable rules consistent therewith. 
He shall give information to the Governor and Legislature con¬ 
cerning the public lands, or the General Land Office, when re¬ 
quired.” He is a member of the Board of Examiners of Land 
Surveyors and of several other State boards. 61 

59 Constitution, Art. IV, sec. 23; Revised Civil Statutes, I, arts. 4342-4366 

(1925). 

60 Constitution, Art. IV, sec. 23; Revised Civil Statutes, I, arts. 4367-4393 

(1925). 

61 Constitution, Art. IV, sec. 23; Art. XIV, sec. 1; Revised Civil Statutes, 
II, arts. 5251, 5268 (1925). 


THE STATE EXECUTIVE 


73 


REFERENCES 

A good discussion of the state executive is found in C. P. Patterson, 
American Government, rev. ed., Ch. XXV ( 1933 ). Appropriate chapters 
are also found in the other general texts on American government. 
A more specialized treatment will be found in the texts on state govern¬ 
ment. See also Judd and Hall, The Texas Constitution, Chs. VI, VII. 
The political careers of Texas Governors are briefly sketched in Hugh 
Nugent Fitzgerald, “Governors I Have Known,” and Norman G. 
Kittrell, “Governors Who Have Been, and Other Public Men of Texas.” 
The messages and other State papers of the Governors are scattered 
through the Legislative journals and the records in the Secretary of 
State’s office. Governor Pat M. Neff has published many of his addresses 
under the title, The Battles of Peace (1925). The lives of some Gov¬ 
ernors have been the subject of masters’ theses at the University of 
Texas. There is need for a comprehensive study on the state executive. 
The reports of the executive departments furnish much material on the 
workings of the State Government. Parts 1,2, 3, 4, of the report of the 
Joint Legislative Committee on Organization and Economy, The Gov¬ 
ernment of the State of Texas ( 1933 ), deal with the offices discussed in 
this chapter. 


CHAPTER V 

STATE ADMINISTRATION 


One who confined his study of administration in Texas to the 
constitutional offices already described would have an incomplete 
picture of the State administrative machine. In 1933 the report of 
a legislative committee listed 131 more or less independent agencies 
in the State Government, approximately two-thirds of which had 
been created since 1900. 1 

CLASSIFICATION OF ADMINISTRATIVE AGENCIES 

Several bases might be used in classifying the officers, boards, 
and commissions which go to make up the State administration. 
They might be classified as to term; duties; compensation; method 
of appointment; source of creation—the Constitution or statute; 
full time, part time, or ex officio; etc. A classification made several 
years ago by one of the authors of this book is thought to be still 
satisfactory. 2 Using this classification and omitting a number of 
temporary and inoperative divisions, we may list the agencies 
under the following seven heads: 

Constitutional Officers .—These are: Governor, Lieutenant- 
Governor, Secretary of State, Comptroller of Public Accounts, 
Treasurer, Commissioner of the General Land Office, and 
Attorney-General. 

Statutory Officers .—These may be divided into: (1) Heads 
of Departments, as the Adjutant-General, Commissioner of 
Agriculture, Banking Commissioner, Health Officer, Highway 
Engineer, Commissioner of Labor Statistics, State Librarian, Rec¬ 
lamation Engineer, Superintendent of Public Instruction, Tax 
Commissioner, and State Auditor and Efficiency Expert; and (2) 
Other Statutory Officers, as State Chemist, State Expert Ento¬ 
mologist, State Forester, Legislative Reference Librarian, In- 

1 Joint Legislative Committee on Organization and Economy, The Govern¬ 
ment of the State of Texas, Pt. 1: Ch. I (1933), hereinafter cited as The 
Government of the State of Texas. 

2 Frank M. Stewart, Officers, Boards and Commissions of Texas, Univer¬ 
sity of Texas Bulletin No. 1854 (1918). See also First Biennial Report of the 
State Auditor and Efficiency Expert, V. 5 (1930). 

74 


STATE ADMINISTRATION 


75 

spector of Mines, Ranger Force, State Veterinarian, State Serv¬ 
ice Officer, Assistant Secretary of State, Auditor for the Prison 
System, Indian Agent, and Rio Grande Compact Commissioner 
for Texas. 

Executive and Supervisory Boards and Commissions. —These 
are: Board of Insurance Commissioners, Game, Fish, and Oyster 
Commission, State Board of Education, Board of Health, High¬ 
way Commission, Industrial Accident Board, Library and His¬ 
torical Commission, Live Stock Sanitary Commission, State 
Mining Board, Railroad Commission, Board of Managers of Texas 
State Railroad, and Board of Water Engineers. 

Boards of Control for State Institutions. —These are: 

1. Educational Boards: Board of Directors of Agricultural 
and Mechanical College of Texas, Board of Regents of College of 
Industrial Arts, Board of Managers of North Texas Junior Agri¬ 
cultural College, Board of Regents of State Teachers Colleges, 
Board of Directors of the Texas College of Arts and Industries, 
Board of Directors of Texas Technological College, and Board of 
Regents of the University of Texas. 

2. Eleemosynary Boards and Commissions: State Board of 
Control, State Commission for the Blind. 

3. Penal Boards: Texas Prison Board. 

Examining Boards and Commissions. —These are: Board of 
Public Accountancy, Board of Chiropody Examiners, Board of 
Dental Examiners, Board of Embalming, Board of Examiners 
of Land Surveyors, Board of Legal Examiners, Board of Library 
Examiners, Board of Medical Examiners, Board of Nurse Ex¬ 
aminers, Board of Examiners in Optometry, Board of Pharmacy, 
Commissioners of Pilots, State Seed and Plant Board, Board of 
Examiners for Teachers, Board of Veterinary Medical Examin¬ 
ers, and Board of Barber Examiners. 

Ex officio and Advisory Boards and Commissions. —These are: 
Anatomical Board, Board to Select Auditor for the Prison System, 
Board for Lease of Eleemosynary and State Memorial Lands, 
Board for Lease of Texas Prison Lands, Board for Lease of Uni¬ 
versity Lands, Board of County and District Road Indebtedness, 
Board of Mineral Development, Banking Board, Depository 
Board, State Board of Canvassers, Commissioners for Fannin 
Park, Gonzales State Park Commissioners, Historical Board, In¬ 
dustrial Commission, Commissioners for King Park, State Parks 
Board, State Board of Vocational Education, San Jacinto State 


76 


GOVERNMENT OF TEXAS 


Park Commissioners, Intangible Tax Board, Board to Calculate 
Tax Rate, Washington State Park Commission, Board of Pardons 
and Paroles, and Firemen’s Training School Advisory Board. 

Miscellaneous Boards and Commissions. —These are: Alamo 
Land Acquisition Board, Board of Mansion Supervisors, Com¬ 
pensation Claims Board, and Pink Bollworm Commission. 

DEFECTS OF STATE ADMINISTRATION 

The Position of the Governor. —The most serious defect of 
State administration in Texas lies in the weakness of the powers 
of the Governor as head of the State administration. This is con¬ 
spicuously true in comparison with the position of the President 
in the national administration. The Governor is popularly sup¬ 
posed to be responsible for the conduct of the administration, but 
his supervision over the administrative agencies is so limited that 
he can not reasonably be held responsible for the acts of State 
officials. His appointive power is restricted by the practice of popu¬ 
lar election of the heads of several important departments, and 
by the requirement of confirmation by the Senate; his removal 
power is limited by the Constitution and statutes; his control over 
the acts of administrative subordinates is too qualified to be effec¬ 
tive ; and he has practically no real power of exercising financial 
control over the administration. A salary of $4,000 per year and 
a term limited to two years are further restrictions on the execu¬ 
tive office. Under these conditions the Governor can not be the 
responsible head of the State administration. 

Other defects of the Texas administrative system are: unscien¬ 
tific fiscal system, duplication and overlapping of work, unsatis¬ 
factory reporting system, the long ballot, no merit system, short 
terms, and low standards of compensation. 

Unscientific Fiscal System. —A thorough examination of the 
State’s system of financial administration—including budgeting 
and appropriating, accounting, auditing and reporting, treasury 
and personnel administration, tax administration, and purchas¬ 
ing and property control, was made by the expert staff working 
under the direction of the Joint Legislative Committee on Organi¬ 
zation and Economy. The committee’s indictment of the prevailing 
fiscal system was severe: 

Since Texas was established as a State, there has probably been less 
progress in financial administration than in the administration of any 
other function of the government. The State has undertaken many new 


STATE ADMINISTRATION 


77 


activities and has expanded all its services since the Constitution now in 
force was adopted; the volume of its financial transactions has increased 
from approximately a million dollars a year to over one hundred million 
dollars a year; but there has been little change in the machinery and 
methods of financial administration for the State as a whole. The pre¬ 
requisites of effective financial management have not received recogni¬ 
tion, much less been provided; the tremendous responsibilities involved 
and the scope and complexity of the duties that should be performed are 
not appreciated; and, consequently, the technical skill, the experience, 
the business acumen, and the sound judgment, that are essential, have 
never been provided, nor does it appear that any attempt has been made 
to secure the services of men possessing these qualifications. . . . 

The results are in evidence on every hand. The financial condition of 
the State as a whole is not known; there is no way of establishing the 
amounts owed either to or by the State; there are no adequate records 
of the expenditures to which the State, through its spending agencies, 
has been committed; no significant statements of the operations of the 
State as a whole are or can be produced; estimates of probable future 
financial condition are but guesses. There is no way of comparing 
financial plans with actual performance, or estimates with realizations; 
there is nothing even remotely approaching cost accounting; the first 
principles of expenditure control are not even understood, much less 
applied; the objectives of efficient treasury management are not even 
seen; and yet the State is spending enough money on disjointed, inde¬ 
pendent efforts by its many agencies in the field of financial administra¬ 
tion, to pay for the technically qualified executives and staff, and 
the facilities, of an efficient and economical organization for financial 
management. 3 

Duplication of Work and Overlapping of Functions .—State ad¬ 
ministration in Texas has developed without systematic planning. 
The establishment of new fields of State activity has been paral¬ 
leled by the creation of new agencies to administer them. Few 
surveys have been made to determine whether existing agencies 
could handle the new function. As a result of this policy adminis¬ 
trative agencies have multiplied until they now number over one 
hundred. Instances of duplication and overlapping of functions 
are to be found in all principal lines of work. The general condi¬ 
tion was concisely stated by Governor Neff in his message of July 
26, 1921: 

We have too many boards, bureaus and commissions. The State is 
burdened with governmental agencies. It is top-heavy. We have too 
much machinery and consequently too much overhead expense. The 

8 The Government of the State of Texas, Pt. 2: 1-2. 


78 GOVERNMENT OF TEXAS 

Government should be simplified. There is no excuse for duplication and 
triplication of work. 4 

Unsatisfactory Reporting System .—Accurate and prompt re¬ 
porting is an essential element of responsible government. Neither 
the Governor, Legislature, nor the public receives prompt and 
definite information regarding the conduct of the State’s afifairs. 
Practically every department of the State Government issues a 
printed report, but reports are irregular, slow in publication, and 
fail to furnish, in many instances, definite information on admin¬ 
istration. Most reports are made to the Governor, for transmis¬ 
sion by him to the Legislature, and they may be quarterly, annual, 
or biennial, for the fiscal year, the calendar year, or for the fiscal 
biennium. 

The contents and methods of presentation of most reports make 
them practically useless to the average citizen or legislator. Only 
a few are indexed. Some are without a table of contents. Bound 
volumes of reports are not issued. Separate reports are issued for 
each State agency. 5 

Long Ballot .—Every two years the people of Texas are called 
upon to elect, in addition to local, district, national, legislative, and 
judicial officers, nine officials of the State administration. Six of 
the nine elective officials are constitutional: Governor, Lieutenant- 
Governor, Attorney-General, Treasurer, Comptroller of Public 
Accounts, and Commissioner of the General Land Office; and 
three are statutory: Railroad Commissioners, Commissioner of 
Agriculture, and Superintendent of Public Instruction. 

Experience has shown that popular election is about the poorest 
conceivable method of selecting qualified and competent adminis¬ 
trators to head departments. 

No Merit System .—Texas has no merit system in the civil serv¬ 
ice. Appointments and removals in the State offices are made 
according to the rules and practices of the “spoils system.” Tech¬ 
nical training and competence are ignored in making appointments 
in most departments. 

Demand for civil service reform has been made in several Demo¬ 
cratic platforms from 1882 to 1912. Governor Colquitt in 1913, and 
Governor Hobby in 1919, recommended the adoption of the merit 

* House Journal, 37th Leg., 1st and 2d called sess., 82 (1921). 

B J. L. McCamy, Governmental Reporting in Texas State Administration 
(Master’s Thesis, University of Texas, 1932). 


STATE ADMINISTRATION 


79 


system in messages to the Legislature. The central investigating 
committees of 1917 recommended the enactment of a civil service 
law to test the efficiency of employees and to protect them from 
dismissal for political reasons. Governor Moody’s efforts in behalf 
of the merit .system are well known. 6 

Proposals for a State civil service law have been made during 
each Legislature since 1911 with the exception of those meeting in 
1921, 1923, and 1925, but no bill has yet been passed. The Legis¬ 
lature and the public have seemed indifferent to this much needed 
reform. 

Short Terms. —Popular election, short terms, and rotation in 
office are features of the constitutional administrative system of 
Texas. Rotation in office, while not required by the Constitution, 
is the general practice after two terms. The terms of all offices not 
fixed by the Constitution are limited to two years. 

An amendment to the Constitution adopted in 1894 gave Rail¬ 
road Commissioners a six-year term. In 1912 amendments were 
adopted extending the term of members of the Board of Prison 
Commissioners to six years, and the Legislature was given author¬ 
ity to provide a six-year term, with biennial renewals, for the 
members of the Board of Regents or directors of the “educational, 
eleemosynary, and penal institutions of the State, and such boards 
as have been, or may hereafter be established by law. ...” 7 Un¬ 
der this provision of the Constitution the Legislature has given 
a six-year term to several boards and commissions, but the terms 
of single officials are still limited to two years. 

Short terms and biennial elections hamper effective administra¬ 
tion. They render almost impossible the development of continuity 
in the administration of the affairs of the State. 

Low Standards of Compensation. —A survey of the last bien¬ 
nial appropriation acts shows that the compensation standards of 
the State are low. “There are few, if any, Tat salaries’ being paid 
by the State. . . . The State is notoriously cheap when it comes 
to paying for the work done in its behalf.” 8 

Salaries, of heads of departments are fixed by the Constitution 

6 See Frank M. Stewart, “The Civil Service Problem in Texas,” Good 
Government, XLVI, 81-85 (1929) ; and B. F. Wright, Jr., The Merit Sys¬ 
tem in American States zvith Special Reference to Texas, University of Texas 
Bulletin, No. 2305, 96-104 (1923). 

7 Constitution, Art. XVI, secs. 30, 30a, 58. 

8 Dallas Morning Nezvs, June 7, 1923. 


80 


GOVERNMENT OF TEXAS 


or by statute. Salaries for subordinate positions are generally fixed 
by the appropriation committees. 

Constitutional salaries are entirely inadequate—Governor, 
$4,000; Attorney-General, $4,000; Secretary of State, $2,000; 
Comptroller, Treasurer, and Commissioner of the General Land 
Office, $2,500. All efforts to amend the Constitution to raise the 
salaries of executive officials have failed. 

Salaries fixed by statute are, on the whole, better, but many 
positions are underpaid. The same low standards and lack of uni¬ 
formity prevail in the salaries for subordinate positions. There is 
an absolute lack of a scientific and modern compensation plan. 

MOVEMENT FOR REORGANIZATION OF STATE ADMINISTRATION 

Before 1917 it can not be said that administrative reorganization 
in the interests of economy and efficiency was a major legislative 
problem. But beginning with the Thirty-fifth Legislature the sub¬ 
ject has had the attention of both the executive and the legislative 
branches of the government at practically every session of the 
Legislature. 

Governors Hobby, Neff, and Moody made strong appeals to the 
Legislatures during their administrations in behalf of administra¬ 
tive reorganization, the budget system, the merit system, the short 
ballot, and a uniform system of accounting and auditing for all 
departments. Governor Moody urged the Legislature, in 1929, to 
make a survey of the administrative organization of the State Gov¬ 
ernment with the view of eliminating unnecessary departments, 
coordinating their efforts, and fixing additional responsibilities 
upon the Chief Executive. 

Legislative accomplishments in the field of administrative re¬ 
form during this period were few. A board of control was created 
in 1919 and twenty-three separate agencies were abolished and 
their work transferred to the board. In 1929 the office of State 
Auditor and Efficiency Expert was created with power to investi¬ 
gate the activities of departments, the duplication of efforts be¬ 
tween departments, and to work out a uniform system of account¬ 
ing and auditing for all State services. Otherwise legislative action 
has been confined to the creation of a number of new agencies, 
and minor consolidations of services. Generally speaking, the work 
done has been piecemeal, not in accordance with a systematic plan, 
and often in violation of sound principles of public administra¬ 
tion. Lack of familiarity in the Legislature with the problem and 


STATE ADMINISTRATION 


81 


the lack of a comprehensive plan have accounted in large part for 
the meager results accomplished. 9 

A most important resolution in the field of administrative re¬ 
form was passed by the Forty-second Legislature and approved 
by the Governor on May 18, 1931. A committee of three Repre¬ 
sentatives, appointed by the Speaker, and two Senators, appointed 
by the President of the Senate, was created “for the purpose of 
making a thorough investigation of all state institutions and state 
departments of any and all kinds . . . with a view to ascertaining 
if such institutions and departments may be, or can be operated at 
a greater efficiency, and a lesser expense to the taxpayers of this 
state; and as to whether or not the policies and operation of such 
institutions can be changed in such a way that the cost of govern¬ 
ment might be reduced, and a greater service be rendered by such 
institutions to the people of this state, and whether some of such 
institutions or departments may be consolidated and made to func¬ 
tion more efficiently and at lesser expense to the people; and as to 
how the affairs of this state may be run in a more economical man¬ 
ner without affecting the efficiency of such affairs. ...” A written 
report of the committee’s findings, conclusions, and recommenda¬ 
tions was to be made to the Forty-third Legislature. 10 

Organization of the committee was completed on June 10, 1931, 
with the election of Representatives Harry N. Graves as chair¬ 
man and Phil L. Sanders as secretary. Other members were Rep¬ 
resentative J. Turney Terrell and Senators Carl C. Hardin and 
Grady Woodruff. The name of “Joint Legislative Committee on 
Organization and Economy” was adopted. Griffenhagen and Asso¬ 
ciates, nationally-known specialists in public administration and 
finance, were selected by the committee as technical staff for the 
conduct of the inquiry. Work on the survey was begun early in 
1932, and the committee’s report, in thirteen parts, was presented 
to the regular session of the Forty-third Legislature, in January, 
1933. 11 The committee’s work constitutes the most comprehensive 
and thorough study of the organization, finance, administrative 
policies, methods, and problems of the various State departments 
and institutions ever undertaken in Texas. 

9 Frank M. Stewart, “Depression and Public Administration in Texas,” 
The Alcalde, v. 20: 108-111 (Feb., 1932). 

10 General Laws, 42d Leg., reg. sess., 938-40 (1931). 

11 The Government of the State of Texas, Pts. 1-13 (Dec., 1932-Jan., 1933 )- 


82 


GOVERNMENT OF TEXAS 


PROPOSED PLAN OF REORGANIZATION 12 

The committee proposed a plan of reorganization of the State 
administrative agencies which was based upon certain practical 
working principles accepted as necessary to secure effective and 
economical administration. These requisites include (I) simplicity 
and definiteness of organization, functions, and responsibility; 
(2) unity and coordination; (3) centralization of service func¬ 
tions; (4) logical and practical allocation of functions; (5) cen¬ 
tralized and qualified managing authorities; (6) competent per¬ 
sonnel; and (7) continuity of operating management within the 
organization and its several departments. 

Applying these principles to the existing organization of State 
administration the committee proposed a plan of dividing the vari¬ 
ous executive and administrative functions of the State among the 
Governor and nineteen administrative departments. This plan, 
which did not require constitutional amendments, was proposed 
for immediate adoption. But the full acceptance of the committee’s 
proposals contemplated a number of constitutional changes. 

When the Constitution is amended the committee suggested that 
all provisions fixing the tenure of office should be removed except 
in the case of the Governor, Lieutenant-Governor, and Attorney- 
General, whose term should be increased to four years. Constitu¬ 
tional provisions with respect to the offices of Treasurer, Comp¬ 
troller of Public Accounts, and Commissioner of the General Land 
Office should be repealed. All provisions in the Constitution fixing 
salaries of public officials should be eliminated. 

The Governor .—The term of the Governor should be increased 
to four years, and the constitutional limitation on his salary should 
be removed so as to permit the payment of a salary in keeping with 
the responsibilities of the office. All parole matters should be trans¬ 
ferred to the proposed Department of Public Welfare and Board 
of Public Welfare, but pardons, commutations of sentences, and 
remissions of fines should be the sole responsibility of the Gov¬ 
ernor. The Governor would appoint, by and with the advice and 
consent of the Senate, and subject to certain restrictions imposed 
by law, heads of fifteen departments who should continue in 
office during satisfactory service and be removable by the Gov¬ 
ernor for good cause under appropriate restrictions. He would 
have the power, with the approval of the Executive Cabinet, to 

12 The Government of the State of Texas, Pt. 1: ch. 2. 


STATE ADMINISTRATION 


83 


prescribe general rules for the conduct of the administrative de¬ 
partments, not inconsistent with law. 

Lieutenant-Governor. —The term of this office should be ex¬ 
tended to four years. No other recommendations were made. 

Executive Cabinet. —Under the chairmanship of the Governor 
there should be an Executive Cabinet composed of the heads of 
the administrative departments. At monthly meetings this body 
should consider matters of interdepartmental relations, and gen¬ 
eral administrative policies and procedures. A Secretary of the 
Executive Cabinet should be appointed by the Governor for an 
indefinite term with power of removal for cause vested in the ap¬ 
pointing authority. He should be chosen solely on the basis of his 
qualifications. The office should be a non-political, continuing one, 
“whose primary purpose shall be to place at the disposal of each 
succeeding administration of the State government, the accumu¬ 
lated knowledge and experience of the incumbent relative to the 
course of business management and the operating program of the 
State, the past action in such matters and the reasons therefor, and 
the status of the projects and undertakings that the State has in 
process at any time. ,, 

State Auditor. —The title “State Auditor and Efficiency Expert” 
should be changed to “State Auditor” and provision be made for 
his selection by the Legislature at each regular session for a term 
of two years, beginning September i. He should be relieved of all 
administrative duties, and his work should be confined to post¬ 
auditing. This office should be entirely independent of the admin¬ 
istration and report its findings and recommendations directly to 
the Legislature. 

Legislative Reference Service. —It is suggested that the Legis¬ 
lative Reference Division of the State Library, including the bill¬ 
drafting function, be placed under the direct control of the Legis¬ 
lature, in charge of a qualified Director of Legislative Reference 
chosen jointly by the President of the Senate and the Speaker of 
the House of Representatives. 

Proposed Administrative Departments. —It is proposed to con¬ 
solidate the 131 agencies into 19 administrative departments. 
Eighteen departments would be headed by a single officer, who 
would be called a Commissioner, except in the case of the De¬ 
partments of State, Law, Militia, Highways, and Buildings and 
Grounds, which would be headed by the Secretary of State, Attor¬ 
ney-General, Adjutant-General, State Highway Engineer, and 


84 


GOVERNMENT OF TEXAS 


Superintendent of Buildings and Grounds, respectively. The De¬ 
partment of Education would have two administrative heads, the 
Commissioner of Education in charge of the Bureau of Public 
Schools and the Chancellor of Higher Education in charge of the 
Bureau of Higher Education. Special qualifications for department 
heads should be written into the law and a statement of the qualifi¬ 
cations and experience of each candidate proposed for appoint¬ 
ment should be made a matter of record and accompany each 
appointment submitted to the Senate for confirmation. 

Department heads would be appointed by the Governor except 
in the case of four departments. Constitutional elective officers, 
the Attorney-General and the Commissioner of the General Land 
Office, would head the Department of Law and General Land Of¬ 
fice. The State Board of Education would appoint the heads of its 
two bureaus—the Commissioner of Education and the Chancellor 
of Higher Education, while the Highway Commission would re¬ 
tain its present power to appoint the State Highway Engineer. The 
Comptroller of Public Accounts, elected as provided in the Con¬ 
stitution, would head the Bureau of Audit and Control in the pro¬ 
posed Department of Finance and Administrative Service, and the 
State Treasurer, likewise elected, would head the Bureau of the 
Treasury in the proposed Department of Taxation and Revenue. 

Provision is made in each department in which important policy¬ 
forming, quasi-judicial, or quasi-legislative functions must be per¬ 
formed for a board or commission, of three, six, or nine citizens, 
appointed by the Governor, by and with the advice and consent of 
the Senate, for overlapping terms of six years. Members should 
be appointed “on the basis of their interest in public affairs, their 
good judgment, and their knowledge and ability in the field of 
action of the department for which appointed, and with a view to 
providing diversity of interest and points of view in the member¬ 
ship.” They should be compensated for their actual expenses and 
should hold no other public office while serving as such members. 
With the exception of the Departments of Education and High¬ 
ways, heads of departments in which these boards function are to 
be appointed by the Governor from among not fewer than three 
candidates certified by the board or commission as qualified for 
the duties to be performed. Such boards shall also approve all ap¬ 
pointments of heads of bureaus or institutions, rules of the de¬ 
partment, budget estimates, and other major matters of adminis¬ 
trative policy, advise the head of the department upon any matter 


STATE ADMINISTRATION 


85 


referred to it by him, conduct investigations and studies, and in 
some cases hear and determine appeals or act as a board of review. 

All provisions in the Constitution or statutes fixing compensa¬ 
tion of officers and employees should be repealed, and salaries 
should be established in conformity to a consistent compensation 
plan, based upon a scientific classification of positions. 

Each department would assume the duties of a number of sepa¬ 
rate independent agencies, which would be abolished. Bureaus 
would be organized in the new department to take over the work of 
the new functions, and these would in some cases be divided into 
divisions. All officers and employees whose functions are trans¬ 
ferred to another agency shall, so far as practicable, continue to 
perform their usual duties until the expiration of their respective 
terms for which they were appointed or elected. 

The following departments would be included in the State ad¬ 
ministrative organization under the plan proposed by the com¬ 
mittee. 

1. Departments Having Administrative Service Functions 

Department of State (under the Secretary of State) 

Department of Law (under the Attorney-General) 

Department of Taxation and Revenue (including the Treasurer), 
with a State Tax Board 

Department of Finance and Administrative Service (including the 
Comptroller of Public Accounts), with a Board of Finance 
Department of Buildings and Grounds 

2. Departments Rendering Direct Service to the Public 

Department of Education, with a State Board of Education 
Department of Public Welfare, with a Board of Public Welfare 
Department of Public Health, with a Board of Public Health 
Department of Public Safety 
Department of Militia 

Department of Labor, with an Industrial Commission 
Department of Banking 
Department of Insurance 

Department of Live Stock Sanitary Inspection 
Department of Forests, Fish, and Game, with a Board of Forests, 
Fish, and Game 

Department of Water Supply and Reclamation, with a Board of 
Water Engineers 

General Land Office (under the Commissioner of the General Land 
Office) 

Department of Highways, with a Highway Commission 
Department of Public Service, with a Public Service Commission 


86 


GOVERNMENT OF TEXAS 


It is declared to be the policy of the State that hereafter no ad¬ 
ministrative agency should be created outside of the organization 
of the administrative departments established by the plan. 

RESULTS TO BE EXPECTED FROM REORGANIZATION 

The committee did not attempt to make exact estimates of 
economies possible through reorganization. However, it believed 
that 

They should be decidedly substantial, probably running high into the 
millions in the aggregate, if the proposals made are given their full 
effect in the manner intended. For example, the effect of the proposals 
relating to the institutions of higher education alone have been con¬ 
sidered from the standpoint of the money savings involved, which it is 
believed would amount to a total in excess of $3,500,000 a year. Probably 
an amount that would compare favorably with this would be involved 
in the remaining proposals. Thus the total savings that could be realized 
through the changes proposed should easily amount to a sum in excess of 
$6,000,000 a year. But the significant fact is that all such savings should 
be accompanied by better service to the public instead of a sacrifice or 
crippling of essential services. 13 

An Administrative Code embodying the committee’s plan of re¬ 
organization was introduced into both houses of the Forty-third 
Legislature, but failed of adoption. Administrative reorganization 
in the interests of efficiency and economy, too long delayed by 
public inertia and political opposition, awaits action by future leg¬ 
islative sessions. 


REFERENCES 

Appropriate chapters on state administration are found in C. P. Pat¬ 
terson, American Government, rev. ed., Chs. XXXVI and XXXVIII 
(1933), an d in the other general texts on American government. More 
detailed treatment is given in the specialized texts on state government. 
For Texas the student should consult four University of Texas bulletins: 
The Reorganisation of State Administration in Texas, No. 2507 (1925) ; 
Officers, Boards, and Commissions of Texas, No. 1854 (1918); The 
Movement for the Reorganization of State Administration, No. 1848 
(1918); and The Merit System in the American States with Special 
Reference to Texas, No. 2305 (1923). The reports of the Joint Legisla¬ 
tive Committee on Organization and Economy— The Government of 
the State of Texas, Parts 1-13—and the volumes of the First and 
Second Biennial Reports of the State Auditor and Efficiency Expert are 
invaluable for the study of Texas State administration. 

13 The Government of the State of Texas, Pt. 1: vii-viii. 


CHAPTER VI 

STATE FINANCE 

The subject of finance may conveniently be studied under four 
main divisions: expenditures, revenues and tax administration, 
financial administration and control, and state and local indebted¬ 
ness. 


EXPENDITURES 

Since the present Constitution was adopted, in 1876, the annual 
volume of the financial transactions of the State has increased 
from approximately a million dollars to over one hundred million 
dollars. For the year ending August 31, 1932, the total cost of op¬ 
erating the State Government amounted to $95,800,980.53. Ex¬ 
penditures other than governmental cost brought the total to $106,- 
735,784.65. 1 The following table shows how the State’s dollar was 
expended for the year ending August 31, 1932. 


Activity 

Cents of Each 
Dollar Expended 

Total Dollars 
Expended 

Legislative. 

.0022 

$209,140.76 

Judicial. 

.0248 

2,371,198.90 

Executive and Administrative. 

.0126 

1,208,466.22 

Military and Law Enforcement. 

.0082 

782,080.11 

Regulation of Business and Industry. 

.0119 

1,137,021.79 

Conservation of Health and Sanitation.. . . 

.0033 

316,301.58 

Development and Conservation of Natural 
Resources. 

.0206 

1,978,007.21 

Highways. 

.4118 

39,458,336.00 

Eleemosynary and Correctional. 

.0600 

5,744,739-00 

Educational: Support of Free Schools. . .. 

.3023 

28,961,501.44 

Higher Education. 

.0994 

9,525,277-33 

Eleemosynary Education. 

.0035 

33L536.63 

Parks and Monuments. 

.0002 

19,781.88 

Pensions. 

.0372 

3,562,641.57 

Miscellaneous Governmental Cost. 

.0020 

194,950.11 

Total Cost. 

1.0000 

$95,800,980,532 


1 Annual Report of the Comptroller of Public Accounts, 23-26 (1932). 

2 Ibid., 14. 


87 

























88 


GOVERNMENT OF TEXAS 


It will be noted that highways and the support of education, in¬ 
cluding the free schools and higher education, stand first and sec¬ 
ond in the list of functions spending the largest sums, the two 
combined being responsible for a fraction over 81 per cent of the 
total expenditures. Next in order come the support of the eleemosy¬ 
nary and correctional institutions, with .06 per cent of the total, 
and Confederate pensions, with .0372 per cent. 

The increase in the cost of the State Government was clearly 
demonstrated by a recent report made by the State Auditor, in 
which expenditures for the year ending August 31, 1920, were 
compared with those of the year ending August 31, 1930. 3 For 
1920, total disbursements were $33,498,724.83, and for 1930, $103,- 
672,473.30, an increase of $70,173,748.47, or 209.48 per cent, using 
the disbursements for the year 1920 as a basis of 100 per cent. The 
increase of $70,173,748.47 was divided as follows: 


Activity 

Amount 

Percentage of 
Total Increase 

Highways. 

$44,641,320.25 

63-615 

Education. 

i 8 , 547 , 504-74 

26.432 

Eleemosynary and Correctional. 

2,527,026.40 

3.601 

Pensions. 

1,392,682.30 

1.985 

Judiciary. 

Development and Conservation of Natural 

1,049,034.61 

i -495 

Resources. 

1,076,667.21 

i -534 

Legislative (two-year period). 

Executive, Administrative, Regulatory, and 

403,099.62 

•574 

all other activities. 

536,413.34 

.764 

Total. 

$70,173,748.47 

100.000 


Highways and education together account for a little more than 
90 per cent of the total increase. Support of eleemosynary and cor¬ 
rectional institutions comes next. 4 

A comparison of the disbursements of the State Government 
for a five-year period, ending August 31, 1931, was made by the 
Tax Survey Committee, created by the Forty-second Legislature. 

3 Second Biennial Report of the State Auditor and Efficiency Expert, v. 2 
(1932). 

4 With the exception of the expenditures for the Texas Prison System the 
figures were taken from the Comptroller’s Reports and include disbursements 
for maintenance and support as well as capital outlays. County Aid is not 
included in the expenditures for 1920, but for 1930 $10,515,575.39 of County 
Aid is included. 





















STATE FINANCE 


89 


Total disbursements for 1927 were $73,563,721, and for 1931, 
$109,184,992, an increase of 48.42 per cent. 5 

Neither the Auditor nor the Tax Survey Committee suggest 
any causes for this increase in the cost of the State Government. 
The increase is attributable to the same general causes which have 
been operative in other states; namely, growth of population and 
wealth, expansion of the services rendered by the state, and the 
decline in the purchasing power of money. 

Regardless of the causes, the rapid growth of the expenditures 
for the State Government has become of increasing concern to the 
taxpayers. In an effort to place a constitutional limitation on State 
expenditures the Forty-third Legislature submitted an amend¬ 
ment to the Constitution to be voted upon at the general election 
in November, 1934. The proposed amendment would limit to 
$22.50 per capita of the State’s population the amount the State 
could collect biennially for taxes and other sources, and would 
impose the same limitation with respect to appropriations. 6 

REVENUES AND TAX ADMINISTRATION 

Revenues .—The expansion of State expenditures has made nec¬ 
essary a corresponding increase in revenues. Total revenue receipts 
for the fiscal year ending August 31, 1932, amounted to $96,894,- 
751.25 and the addition of non-revenue receipts brought the total 
to $108,693,455.71. The principal sources of revenue for 1931- 
1932, the amounts received, and the percentage of each item to the 
total receipts, are shown in the table on page 90. 

From this table it is seen that the gasoline tax of four cents 
per gallon is the most productive. One-fourth of the receipts 
from this tax goes to the available free school fund, one-fourth to 
the “County and Road District Highway Fund,” for the payment 
of county and road district expenditures on highways, and the re¬ 
mainder to the State Highway Fund. 7 Refunds to claimants, in¬ 
cluding farmers, municipalities, contractors, aircraft, railroads, 
etc., amounted to over 10 per cent or $3,275,141.75 for 1931-32. 8 

Since 1922 the increase in income from the general property tax 
has been relatively slight. The adoption of a constitutional amend¬ 
ment in November, 1932, exempting from State taxation residence 

5 Report of the Tax Survey Committee, Ch. 4 (i 933 )- 

6 General Laws, 43d Leg., reg. sess., 1038-1039 (i 933 )« 

7 General and Special Laws, 42d Leg., 3d called sess., 18 (1932). 

8 Annual Report of the Comptroller of Public Accounts, 197 ( I 93 2 )* 


90 


GOVERNMENT OF TEXAS 


homesteads of $3,000 assessed taxable value, will further reduce 
the income from this tax. 

Gross receipt taxes are levied chiefly on gas, water, power and 
light companies, telephone and telegraph companies, express com¬ 
panies, collecting agencies, car line companies, pullman companies, 


Source 

Cents of Each 
Dollar Received 

Total Dollars 
Received 

Ad Valorem Tax. 

.2494 

$24,175,000.74 

Inheritance Tax. 

.0064 

617,934.78 

Poll Tax. 

.0160 

i, 553 > 7 ° 6.88 

Gross Receipts Tax. 

.0723 

7,001,299.89 

Insurance Companies Occupation Tax. 

.0231 

. 2,236,950.37 

Occupation Tax. 

.0021 

199,511.42 

Cigarette Tax. 

•0353 

3,420,645.42 

Fur Tax. 

.0002 

15,406.91 

Fish and Oyster Tax. 

.0003 

28,940.38 

Gasoline Tax. 

.2911 

28,213,020.59 

Franchise Tax. 

.0154 

1 , 490 , 349-73 

Fire Insurance Commission Maintenance 
Tax. 

.0222 

212,429.14 

Workmen’s Compensation, Insurance Com¬ 
mission Maintenance Tax. 

.0006 

56,198.18 

Licenses. 

•0375 

3,636,619.11 

Total Taxes and Licenses . 

•7519 

$72,858,013.54 

Fees and Permits. 

.0117 

1,130,384.55 

Land Sales, Rentals, and Royalties. 

.0243 

2 , 355 , 893-84 

Sale of Commodities and Properties. 

.0059 

572,018.16 

Court Costs, Fines and Suit Settlements... 

.0025 

238,107.91 

Interest and Penalties. 

•0374 

3,623,324.22 

Miscellaneous Revenues. 

.0032 

313,322.35 

County, Federal, and Other Aid. 

.1631 

I 5,803,686.68 

Total Revenue Receipts. 

1.0000 

$96,894,751.25 9 


casinghead gas and natural gas, regulating pipe line, oil well own¬ 
ers, sulphur companies, and textbook dealers. Insurance companies 
pay a tax on gross premium receipts and a maintenance tax for the 
cost of supervision. 

Occupation taxes are paid by auctioneers, cigarette dealers, cir¬ 
cuses, theaters, peddlers, shooting galleries, carnivals, and other 
occupations. One-fourth of the revenue derived from the occupa- 

9 Annual Report of the Comptroller of Public Accounts, 14 (1932). The 
figure .7519 in the first column is an incorrect total of the preceding items; 
it is, however, the figure that appears in the Comptroller’s report. 





































STATE FINANCE 


91 


tion taxes and one dollar of each State poll tax of $1.50 is payable 
to the available free school fund. The gasoline tax is also levied 
as an occupation tax. 

The inheritance tax is one on collateral heirs. Franchise taxes 
and charter fees and permits paid by domestic and foreign cor¬ 
porations are collected chiefly by the Secretary of State. The State’s 
share of the motor vehicle license fees constitutes the bulk of the 
income under “Licenses.” County aid for the building of State 
highways will not be accepted in the future, in accordance with a 
new policy adopted by the Legislature in 1932. The greater part of 
the interest collected by the State comes from the investment of 
the permanent funds of the University and eleemosynary institu¬ 
tions. Land sales, rentals, and royalties are derived chiefly from 
public lands and oil development in West Texas. 10 

Tax Administration .—The Comptroller of Public Accounts is 
the principal tax official of the State. His office supervises the ad¬ 
ministration of the general property tax, assesses and collects the 
gross receipts taxes, gasoline tax, gross production tax, and occu¬ 
pation taxes, keeps records of delinquent ad valorem taxes and of 
payment of such taxes, audits reports on inheritance taxes, han¬ 
dles gasoline tax refunds, and supervises the collection of taxes 
and auditing accounts of collectors and payers of all taxes other 
than ad valorem. Tax functions take 52.8 per cent of the expendi¬ 
tures for the office. 11 

The State Tax Board is composed of the Comptroller, Secretary 
of State, and Tax Commissioner, chairman, the last-named being 
appointed by the Governor for a term of two years. Its principal 
work is the ascertainment and apportionment among the counties 
of the intangible assets of the railroad, ferry, bridge, turnpike, or 
toll companies. The board has the duty of investigating the opera¬ 
tion of the revenue laws and systems of other states, but no appro¬ 
priation has ever been made for this purpose. The board is popu¬ 
larly known as “The Intangible Tax Board.” 12 

For the purpose of calculating the State property tax rate a 
board consisting of the Governor, Comptroller, and Treasurer 
was created in 1907, and is known as the Board to Calculate the 
Ad Valorem Tax Rate. It meets once a year, as soon after July 15 
as possible, to calculate the rate, and when fixed the rate is certi- 

10 Ibid., 7-22, 183, 184, 197. 

11 The Government of the State of Texas, Pt. 2: 26-31. 

12 Ibid., 125-26. 


92 


GOVERNMENT OF TEXAS 


fied to the county assessors. In determining the rate the board fol¬ 
lows a mechanical formula prescribed by law. 13 

County assessors, collectors, and commissioners’ courts serve as 
agents of the State in the assessment, collection, and equalization 
of the general property tax. 

The imperfections of the tax system of Texas have long been 
the source of comment by legislators and academic and business 
representatives. Legislative tax survey committees, within the last 
four years, have referred to the tax laws as “a mass of indiscrimi¬ 
nate enactments,” “a mass of patchwork,” “a series of separate and 
in many instances incoherent measures,” resulting in many dis¬ 
criminations in the tax burden and a general demand for the 
equalization of taxes. Specific indictments are brought against the 
general property tax: it is a tax principally on real property; in¬ 
tangible personal property largely escapes taxation; there is lack 
of uniformity in assessment rates from county to county; there are 
unjust discriminations among the owners of different classes of 
property and among the owners within the same class of property; 
and the tax, as administered, is a constant inducement to perjury. 14 
It is said that the formula prescribed by law for fixing the State tax 
rate is an arbitrary and inadequate method of balancing the budget. 

But the most serious defect is the absolute lack of a unified sys¬ 
tem of tax administration. Tax functions are distributed among a 
number of independent and uncorrelated agencies. “Our investi¬ 
gations have convinced us that most of our tax laws are being ad¬ 
ministered very passively at best, and that there is much duplica¬ 
tion of effort under our present system.” “Our tax system may be 
compared to a business without a strong executive and adminis¬ 
trative head.” 15 

FINANCIAL ADMINISTRATION AND CONTROL 

Responsibility for the administration of the financial affairs of 
the State is divided among a number of separate agencies. 16 Theo¬ 
retically, the Comptroller of Public Accounts is the chief accounting 
and administrative auditing officer of the State Government, though 
the expenditures for these purposes amount to not more than twelve 
per cent of the entire expenditures of the office. His office keeps the 
appropriation and general accounts of the State, prepares financial 

13 The Government of the State of Texas, Pt. 2: 126-27. 

14 Report of the Tax Survey Committee, Ch. 1 (1933). 

15 Ibid., 8-9. 

18 The Government of the State of Texas, Pt. 2. 


STATE FINANCE 


93 


reports, audits and approves all claims against the State and issues 
warrants in payment thereof, administers the Confederate pension 
fund, and registers bond issues of the State and local governments. 

The receipt, custody, disbursement, and investment of State 
funds constitute the principal duties of the State Treasurer. His 
office also sells the cigarette tax stamps. A State Depository Board, 
composed of the Treasurer, Attorney-General, and Banking Com¬ 
missioner, makes rules and regulations regarding State depository 
banks. 

Centralized purchasing was inaugurated in 1899 with the crea¬ 
tion of the office of purchasing agent for the eleemosynary institu¬ 
tions. With the creation of the Board of Control in 1919 purchas¬ 
ing duties were assumed by it. The Division of Purchasing makes 
purchases of all supplies, except strictly perishable goods, used 
by all State departments and institutions. Printing and stationery 
supplies for the departments and institutions are purchased by the 
Division of Public Printing of the Board of Control. 

Before 1921 Texas had the “legislative” type of budget. When 
the Board of Control was established it was made its duty, through 
the Division of Appropriations and Estimates, to collect the budget 
estimates and submit a printed budget to each regular session of the 
Legislature. 

A law of 1931 amended the budget procedure by making the 
Governor the chief budget officer of the State. 17 The Board of 
Control will continue to prepare a preliminary budget. From this 
document and from information furnished by the State Auditor, 
from other official sources, and from public hearings the Governor 
prepares a final budget, which is printed and distributed to mem¬ 
bers of the Legislature, State officials, and citizens. Within thirty 
days after the beginning of the regular session the Governor must 
submit to the Legislature five itemized appropriation bills, accom¬ 
panied by a budget message furnishing required financial informa¬ 
tion. The Governor and Governor-elect have the right to attend all 
budget hearings conducted by the Board of Control. Heads of 
spending agencies and taxpayers may attend and speak before all 
such hearings and also any hearings conducted by the Governor or 
legislative finance committees in the consideration of the budget. 
When a new Governor is elected, he shall prepare five appropriation 
bills and transmit them to the Legislature within twenty days from 
the date he takes the oath of office. 

17 General Laws, 42c! Leg., reg. sess., 339-349 ( 1 93 1 ) ♦ 


94 


GOVERNMENT OF TEXAS 


The Forty-first Legislature, 1929, created the office of State 
Auditor and Efficiency Expert. 18 The Governor is authorized to 
appoint, subject to confirmation by the Senate, “an investigator of 
all custodians of public funds and disbursing officers of this State 
and personnel of departments.” The State Auditor must be a certi¬ 
fied public accountant with at least five years’ experience immedi¬ 
ately preceding his appointment, of unquestioned intelligence and 
moral character, and experience in auditing and efficiency details 
of governmental departments and business. Under the direction of 
the Governor, the Auditor is granted authority to inspect the books, 
accounts, records, and reports of all officers,, departments, and in¬ 
stitutions, and of all custodians of public funds and disbursing offi¬ 
cers of the State. He shall thoroughly examine all departments of 
the State Government with special reference to their activities and 
the duplication of effort between departments and the efficiency of 
the subordinate employees. Reports of his examinations of depart¬ 
ments shall be furnished to the head of the department, to the Gov¬ 
ernor, the Speaker of the House, and the President of the Senate. 
Additional duties have subsequently been imposed upon the Audi¬ 
tor by the Legislature, including the auditing of oil royalties, the 
compilation of certain information for the Governor in the prepara¬ 
tion of the State budget, and the collection of statistics on the taxes 
and indebtedness of local governments. His reports during the four 
years of the existence of the office have presented for the first time 
a true picture of the financial operation of many departments and 
institutions and have resulted in the adoption of improved methods 
in many cases. His preliminary investigations of State organization 
and financial methods had much influence in the legislative decision 
in 1931 to authorize a comprehensive survey of all State agencies. 

An Auditor for the Prison System is selected every two years 
by a board composed of the Attorney-General, Treasurer, and 
Comptroller. 

In 1932 the Legislature created the Board of County and Dis¬ 
trict Road Indebtedness, to be composed of the State Highway 
Engineer, Comptroller of Public Accounts, and State Treasurer. 
Its function is the preparation of a list of bonds of counties and 
road districts eligible to participate in the fund for payment out¬ 
lined in the law. 

The weaknesses in the existing organization and methods of 
financial administration were discussed at length in the report of 

18 General and Special Laivs, 41st Leg., 1st called sess., 222-225 (1929). 


STATE FINANCE 


95 


the Joint Legislative Committee on Organization and Economy. 
“The principal defect of the organization for financial administra¬ 
tion is the entire lack of any coordinating authority qualified to 
design, install, and supervise the operation of a unified system of 
financial administration under which all budgeting, purchasing, ac¬ 
counting, administrative auditing, and fiscal reporting procedures 
would be integrated.” Other limitations noted were: “no real effec¬ 
tive budgeting,” “no clear-cut, concise, and intelligible statements 
of financial condition,” “woeful inadequacy of the accounting sys¬ 
tem,” lack of provisions for current auditing and for independent 
post-auditing, and lack of competent personnel. The fiscal laws of 
the State are “voluminous, detailed, complex, but wholly inade¬ 
quate.” In short, the financial system of the State is antiquated, 
without integration in organization, competence in personnel, or 
sound methods of procedure. 19 

Proposed Plan of Organization for Financial and Tax Adminis¬ 
tration .—Several proposals for the reorganization of the tax and 
financial system of the State have been made within recent years. 
The Tax Survey Committee, created by the Forty-second Legisla¬ 
ture, repeated a recommendation of a similar committee in 1929, 
that the work of tax collection now performed by a number of in¬ 
dependent agencies should be merged under a State Tax Board, 
greatly enlarged in functions and powers. The State Tax Commis¬ 
sioner should be the administrative head of the department, respon¬ 
sible for the general administration of the department, and the two 
ex officio members of the board should act only in matters involving 
assessments. 20 

Reorganization of the numerous financial agencies into three 
principal departments was recommended by the Joint Legislative 
Committee on Organization and Economy. These departments were 
to be Taxation and Revenue, Finance and Administrative Service, 
and State Auditor. A brief discussion of each department will indi¬ 
cate the plans of the committee. 21 

Department of Taxation and Revenue.—This department would 
have supervision over all taxation and tax collecting and treasury 
functions now performed by the State Tax Board, State Tax 
Commissioner, Comptroller of Public Accounts, Treasurer, Secre¬ 
tary of State, Railroad Commission, Board of Insurance Commis- 

10 The Government of the State of Texas, Pt. 1: 5-9; Pt. 2: ch. 4. 

20 Report, 28-31. 

21 The Government of the State of Texas, Pt. 2: chs. 5, 11. 


96 


GOVERNMENT OF TEXAS 


sioners, Game, Fish, and Oyster Commission, Motor Vehicle 
Registration Division of the State Highway Department, Board to 
Calculate the Ad Valorem Tax Rate, and the Board of Equaliza¬ 
tion for Unorganized Counties. The State Treasurer would head 
the Bureau of the Treasury in the department, and the State De¬ 
pository Board would be abolished. A Commissioner of Taxation 
and Revenue and a State Tax Board would be appointed by the 
Governor as provided in the committee’s recommendations for 
other departments. 

Department of Finance and Administrative Service.—The budg¬ 
eting, purchasing, accounting, and auditing duties of the State 
Board of Control, the pre-auditing work of the Auditor for the 
Prison System, and the duties of the Board to Select the Auditor for 
the Prison System would be taken over by this department. The 
Comptroller of Public Accounts’ office would be consolidated with 
this unit, and the Comptroller would head the Bureau of Audit and 
Control. The department would also take over the duties of the 
Board of County and District Road Indebtedness and the Board of 
Managers of the Texas State Railroad. A Commissioner of Finance 
and a Board of Finance would be appointed by the Governor as 
provided in the committee’s recommendations for other depart¬ 
ments. 

State Auditor.—This official should be appointed by the Legis¬ 
lature, and his duties should be confined to post-auditing. 

STATE AND LOCAL INDEBTEDNESS 

A strict limitation on the creation of a State debt was placed on 
the State Government by the Constitution of 1876. 

No debt shall be created by or on behalf of the State, except to supply 
casual deficiencies of revenue, repel invasion, suppress insurrection, de¬ 
fend the State in war, or pay existing debt; and the debt created to 
supply deficiencies in the revenue, shall never exceed in the aggregate 
at any one time two hundred thousand dollars. 22 

The total bonded debt of the State on August 31, 1932, was 
$4,102,200, owned by permanent funds of the State, as follows: 
Permanent School Fund, $2,872,000; Permanent University of 
Texas Fund, $625,600; Agricultural and Mechanical College Per¬ 
manent Fund, $209,000; Lunatic Asylum Permanent Fund, $126,- 
300; Blind Institute Permanent Fund, $134,400; Deaf and Dumb 

22 Constitution, Art. Ill, sec. 49. 


STATE FINANCE 


97 


Institute Permanent Fund, $104,300; and Orphan Home Perma¬ 
nent Fund, $30,600. 23 

Any increase of the existing debt of the State requires additional 
constitutional authorization. In 1919 the voters rejected a bond 
issue of $75,000,000 for the construction of State highways, and 
in 1929 and 1931 the Legislature refused to submit to the voters 
a proposed amendment for a large State bond issue for highway 
construction. By law of 1932 the State agreed to reimburse counties 
and road districts for expenditures (bonds and warrants) incurred 
by them in the construction of State highways. It is estimated that 
the obligation which the State has assumed, and which will be paid 
from a fund derived from one-fourth of the gasoline tax revenues, 
will approximate $io8,ooo,ooo. 24 On August 26, 1933, the voters 
adopted a constitutional amendment authorizing the issuance of 
$20,000,000 of State bonds to match federal funds for cooperative 
unemployment relief work in Texas. 

Two important laws affecting local taxation and finance were 
enacted by the Forty-second Legislature. One, known as the “Uni¬ 
form Budget System” law, required all counties, cities, towns, vil¬ 
lages, independent and common school districts to prepare a budget 
to cover all proposed expenditures of the unit for the succeeding 
year. Copies of all budgets adopted must be filed in the office of 
the State Comptroller of Public Accounts. 25 Another law requires 
the county auditor, or the county clerk if there be no auditor, to 
compile during the month of September a report to the State 
Auditor showing, for the county and all local units of government 
within the county, the amount of taxes collected, amount of taxes 
delinquent, amount to credit of sinking funds, and amount of out¬ 
standing bonded indebtedness and outstanding warrants at the end 
of the fiscal year. 26 

The second report issued by the State Auditor in compliance 
with this law contains summary tables based on information sub¬ 
mitted by 8,466 local units of government (254 counties, 529 cities, 
6,990 school districts, 494 road districts, and 199 water districts). 27 
Two hundred and seventy-six school districts were not included, 
as they collected no taxes and had no bonded debt during the fiscal 

23 Annual Report of the Comptroller of Public Accounts, 75-76 ( J 93 2 ) ♦ 

24 Dallas Morning News, July 6, 1933. 

25 General Laws, 42d Leg., reg. sess., 339-349 (i 930 - 

28 Ibid., 500-502. 

27 “Report on Taxes and Indebtedness of Local Units of Government in 
Texas,” Second Biennial Report, v. 26 (1 933 ) • 


98 


GOVERNMENT OF TEXAS 


year ending August 31, 1932. Indebtedness was reported by 8,760 
local units. 

Taxes collected by local units of government, including the State 
ad valorem and other taxes administered locally, for the fiscal 
periods ended prior to September 1, 1932, amounted to $151,368,- 
084, divided as follows: 


Counties (except roads) . $16,135,716 

Cities (except schools) . 37,744,695 

Road districts (including county roads) . 27,521,194 

School districts . * . 34,512,163 

Water districts (including navigation) . 5,637,162 

Total, Local Units. $121,550,930 

State Government . 29,817,154 

Total . $151,368,084 


Adding to this total the amount of other State taxes collected di¬ 
rectly by State departments and the highway license fees, amounting 
to $56,602,984, it is found that the total tax burden for the State 
amounted to $207,971,068. Delinquent taxes reported as due the 
State and all local units amounted to $119,645,325. 

The net bonded indebtedness (total bonded indebtedness and 
time warrants minus the amount to the credit of sinking funds) of 
all local units of government aggregated $708,607,835, divided as 
follows: 


Local Units 

Bonds and 
Time Warrants 

Sinking Funds 

Net Debt 

Counties (except roads). 

$ 43 , 439,360 

$1,908,479 

$41,530,881 

Cities (except schools). 

Road districts (including county 

272,216,152 

20,293,036 

251,923,116 

roads). 

233,363,278 

15,382,056 

217,981,222 

School districts. 

Water districts (including naviga¬ 

127,422,898 

9,183,869 

118,239,029 

tion) . 

82,133,986 

3,200,399 

78 , 933,587 

Totals. 

$ 758 , 575,674 

$49,967,839 

$708,607,835 


The debt of the State of Texas, amounting to $4,102,200, when 
added to the net debt of all local units gives a total debt of $712,- 
710,035, or $122.36 per capita, based on the 1930 federal census. 

As a result of the difficulties encountered in obtaining material 
for his report the State Auditor recommended that some State 
agency should be given authority to prescribe and enforce uniform 






























STATE FINANCE 


99 


methods of accounting and reporting for all local units of govern¬ 
ment. The Joint Legislative Committee on Organization and 
Economy proposed the creation of a Division of Local Government 
in the Department of Taxation and Revenue, which would take 
over the work of the Comptroller in registering the bonds of local 
governments and from the State Auditor the duty of compiling 
financial statistics of local governments. “It is proposed that the 
Department of Taxation and Revenue be empowered to supervise 
local assessments and collections; to assist local governments in all 
matters of financial administration; and to require all local govern¬ 
ments to file annual reports of financial condition and financial 
operations.” 28 


REFERENCES 

For a general discussion of state finance, see C. P. Patterson, Ameri¬ 
can Government, rev. ed., Ch. XXXVII (1933) and other standard 
texts on American government and state government. See also Judd 
and Hall, The Texas Constitution, Chs. XII, XIII. Part 2 of the report 
of the Joint Legislative Committee on Organization and Economy 
( I 933) dealing with the fiscal agencies and financial administration is a 
noteworthy document. Much valuable material will be found in the first 
and second biennial reports of the State Auditor and Efficiency Expert 
(1929-1933). One should consult also the annual reports of the Treas¬ 
urer, Comptroller of Public Accounts, State Tax Commissioner, and the 
biennial budgets prepared by the Board of Control. The reports of the 
legislative tax survey committees, in 1929 and 1933, contain pertinent 
information on the taxation and revenue system of the State. Professor 
E. T. Miller’s, A Financial History of Texas, University of Texas Bul¬ 
letin No. 37, 1916, remains the standard work in this field. 

28 The Government of the State of Texas, Pt. 1: 24. 


CHAPTER VII 

STATE EDUCATIONAL ADMINISTRATION 


At the close of the fiscal year, August 31, 1933, the scholastic 
population of Texas, ages 6 to 17 years, inclusive, was 1,567,704, 
for whose education there were provided 11,836 public elementary 
schools and 1,400 public high schools. To instruct these pupils 
45,873 teachers were employed, of whom 5,429 were Negroes. 
There were in the State 6,246 common school districts and 1,028 
independent school districts. To administer these schools there is 
the State Board of Education, under whose authority the State 
Superintendent of Public Instruction functions, together with 254 
county superintendents and more than a thousand superintendents 
of independent school districts. 

There are fifteen State-supported institutions of higher learning 
in Texas, counting branches maintained as separate plants, and 
two junior colleges. These institutions are: 

The University of Texas, Main University, at Austin 
The University of Texas, Medical Branch, at Galveston 
The University of Texas, College of Mines and Metallurgy, at El 
Paso 

The Sam Houston State Teachers College, at Huntsville 
The North Texas State Teachers College, at Denton 
The Southwest Texas State Teachers College, at San Marcos 
The East Texas State Teachers College, at Commerce 
The West Texas State Teachers College, at Canyon 
The Stephen F. Austin State Teachers College, at Nacogdoches 
The Sul Ross State Teachers College, at Alpine 
The Agricultural and Mechanical College, at College Station 
The Texas Technological College, at Lubbock 
The College of Industrial Arts, at Denton 
The Texas College of Arts and Industries, at Kingsville 
The Prairie View State Normal and Industrial College, at Prairie 
View 

The last-named institution is the State college of higher education 
for Negroes. The two junior colleges are the- North Texas Junior 


100 


STATE EDUCATIONAL ADMINISTRATION 101 

Agricultural College, at Arlington, and the John Tarleton Agri¬ 
cultural College, at Stephenville. These junior colleges are branches 
of the senior Agricultural and Mechanical College. The controlling 
boards of State institutions are known as boards of regents or di¬ 
rectors, the members of which are appointed by the Governor with 
the consent of the Senate. The size of all boards is uniform, nine 
members. One board controls the University of Texas and its 
branches at Galveston and El Paso; another governs the senior 
Agricultural and Mechanical College, the two junior agricultural 
colleges, and the Prairie View State Normal and Industrial Col¬ 
lege. The seven State teachers colleges are supervised by a single 
board, while each of the other institutions named has a separate 
board. 

In addition to the State educational institutions already named, 
there are the Texas School for the Blind, the Texas School for 
the Deaf, and the Deaf, Dumb, and Blind Institute for Colored 
Youths. These schools are located at Austin and are sometimes 
classed as eleemosynary institutions. They are under the direct 
supervision of the State Board of Control. 1 

Imposing as this educational edifice appears, it is yet imperfect 
in organization and methods of operation. The system in its present 
form is, nevertheless, the result of long and arduous effort, and 
its foundation is laid deep in the record of the past. 

A HISTORICAL STATEMENT 

The first school in Mexico was begun by Father Gante in the 
vicinity of Mexico City about 1524. It contained facilities for in¬ 
structing a thousand children. They were taught prayers, religious 
exercises, reading, writing, drawing, and music, and the boys were 
given additional instruction in carpentry, bricklaying, and masonry. 2 
In 1536, under the authority of Antonio de Mendoza, Viceroy of 
New Spain, the College of Santa Cruz de Tlatelalco was established 
for the education of noble Indians. In 1553 Luis de Velasco, Men¬ 
doza’s successor, established the Royal University of Mexico, the 
first in North America. 3 

Spanish authority was not established in the interior province of 

1 Twenty-seventh Biennial Report of the State Department of Education, 
Bulletin No. 314 (1933) ; Bulletin No. 20, United States Department of Edu¬ 
cation, I, 1-25, 771-800 (1931). 

2 H. I. Priestley, The Mexican Nation, 98. 

3 H. E. Bolton and T. M. Marshall, The Colonisation of North America, 
1492-1783, 50-53. 


102 


GOVERNMENT OF TEXAS 


Texas until after the appearance of the French under La Salle in 
1685. After that event Spanish mission schools began to appear, 
the first being a group in East Texas. During the mission period, 
which lasted well into the eighteenth century, as many as twenty- 
five such schools were established. The purpose of these schools 
was to train the Indians in the ways of settled life, to teach them 
the Christian religion, and to make them loyal Spanish subjects. 
They were administered by the Church and supported by the State. 

SCHOOLS FOR SPANISH CHILDREN 

In 1718 the Spaniards founded San Antonio: in 1731 they offi¬ 
cially designated the settlement Villa de San Fernando de Bexar. 
Soon a school was opened for instruction of Spanish children. “It 
is absolutely certain,” says Frederick Eby, “that the first school in 
Texas, other than the missions, was conducted in San Fernando.” 4 
As early as 1746 Cristobal de los Santos was teaching there. This 
was in all probability a parish school, administered jointly by the 
Cabildo and the Church authorities. 

The Constitution of 1827 of the State of Coahuila-Texas made 
provision for education as follows: “In all the towns of the State 
a suitable number of private schools shall be established, wherein 
shall be taught reading, writing, arithmetic, the catechism of the 
Christian religion. . . . The method of teaching shall be uniform 
throughout the State, and . . . Congress shall form a general 
plan of public education . . . and regulate ... all that pertains to 
this most important object.” 5 

Pursuant to this constitutional mandate laws were enacted di¬ 
recting the ayuntamientos to establish schools and requesting them 
to appoint visiting committees which were to report semi-annually 
to the government. Thus by constitutional provision and statutory 
enactment the new political regime was committed to public edu¬ 
cation. 

Despite this apparent interest in education among Mexican au¬ 
thorities, the establishment of schools in Texas lagged, and during 
the revolutionary period those that had been created practically 
ceased to operate. In 1834, according to the report of Colonel Juan 
Almonte, there was only one school in San Antonio, one near 
Brazoria, one near Nacogdoches “very poorly supported,” another 
at San Augustine, and one at Johnsburg. There were probably a 

4 Frederick Eby, Development of Education in Texas, 61. 

6 Frederick Eby, Education in Texas, Source Materials, 30. 


STATE EDUCATIONAL ADMINISTRATION 


103 


few others being conducted by colonists from the United States of 
which Colonel Almonte did not learn. 

The colonists in their petitions protested vigorously to the Mexi¬ 
can Government because it had failed to establish a system of free 
schools. Nevertheless, the educational provision of the Constitution 
of 1836 merely said: “It shall be the duty of Congress, as soon as 
circumstances will permit, to provide by law a general system of 
education.” 6 However, the first Texas Congress, which met in 
1836, made no provision for public education. Not until the first 
message of President Lamar, in December, 1838, is there again 
official recognition of the government’s responsibility along this 
line. In that message Lamar proposed “a liberal endowment . . . 
adequate to the general diffusion of a good redamental education 
in every district of the Republic and to the establishment of a uni¬ 
versity where the highest branches of science may be taught.” 7 

Stimulated by this brisk leadership, the first education law was 
passed January 26, 1839. It provided, among other things, that 
three leagues of land (13,284 acres) should be set apart in each 
county “for the purpose of establishing a primary school or acad¬ 
emy,” and fifty leagues for the endowment of “two colleges or 
universities.” In 1840 the county school land was increased to four 
leagues, and the chief justice and his associates in each county were 
empowered to set up school districts, examine teachers, and inspect 
and supervise schools. In this law for the first time provision was 
made for State participation in creating a system of public schools. 

Little was done, however, toward actually bringing into existence 
such a system as the president contemplated. As late as 1855 “only 
forty-one counties had completed surveys of their school lands; 
twenty had made only partial surveys; and thirty-eight had made 
no effort whatever. There was no evidence that any county in early 
times used its lands for the establishment of schools.” 8 The only 
opportunities for the education of the children of the Texas pio¬ 
neers continued to be those at their mothers’ knee or those provided 
in the “old-field” schools conducted by itinerant teachers. 

6 H. N. P. Gammel, Laws of Texas, I, 1079; Frederick Eby, Education in 
Texas, Source Materials, 131; B. P. Poore, The Federal and State Consti¬ 
tutions, Colonial Charters, and, other Organic Laws of the United States, II, 
1760. 

7 Frederick Eby, Education in Texas, Source Materials, 151-152. 

8 Frederick Eby, Development of Education in Texas, 92. 


104 


GOVERNMENT OF TEXAS 


EDUCATION AFTER ANNEXATION 

When Texas joined the Union the Constitution of 1845, by a 
shrewd manipulation of terms, expressed a compromise among pre¬ 
vailing theories of education. In the first section on education it 
imposed upon the Legislature the obligation of making ‘'suitable 
provision for the support and maintenance of public schools.” The 
second section stated that the Legislature “shall, as early as prac¬ 
ticable, establish free schools throughout the State and shall fur¬ 
nish means for their support by taxation of property . . . and it 
shall be the duty of the legislature to set apart not less than one- 
tenth of the annual revenue of the state, derivable from taxation, 
as a perpetual fund which shall be appropriated to the support of 
free public schools.” 9 Thus was established in Texas the principle 
of taxation for free public education. 

THE SCHOOL LAW OF 1854 

During the administration of Governor Pease a great forward 
step was made in education. The State Treasurer was designated 
as ex officio superintendent to administer the common schools, and 
the county judge and commissioners’ court became the county 
school board; the office of district trustee was created and the 
trustees were given power to employ primary teachers in colleges 
and academies and to convert such departments into common 
schools for the district. It was at this time also that the sum of 
$2,000,000 in United States 5% bonds was set aside for a perma¬ 
nent endowment of common schools to be known as the Special 
School Fund. Many private institutions were promoted at this time 
by local educational leaders, by religious bodies, and by fraternal 
orders. Eby points out that “from annexation to the beginning of 
the War 117 institutions were granted charters by the legisla¬ 
ture.” 10 


SCHOOLS AFTER THE CIVIL WAR 

During the Civil War the State educational system ceased to 
function, though by the Constitution of 1861 no change was made 
in the plan of operation. That document declared for free schools 
to be supported by taxation on property. However, from 1861 to 
1870 “no funds were appropriated from the State Treasury for 
the support of the school system.” Under a law of 1856 the per- 
9 Frederick Eby, Development of Education in Texas, 104. 10 Ibid., 126. 


STATE EDUCATIONAL ADMINISTRATION 


105 


manent school fund was loaned to railroad companies and became 
dissipated. By the end of the war the two and a half millions of 
dollars were practically gone. 

In the Constitution of 1866, written at the instigation of the Re¬ 
construction forces under the “Presidential Plan,” the educational 
ideas as expressed in the Constitution of 1845 were reiterated and 
the plan enlarged. The Legislature was empowered to create a pub¬ 
lic school system. This system was to be administered by a State 
Superintendent of Public Instruction to be appointed by the Gover¬ 
nor. The State Superintendent, the Governor, and the Comptroller 
constituted the State Board of Education, which was to have 
“general management and control of the perpetual school fund, 
and the common schools under such regulations as the legislature 
may hereafter prescribe.” 11 The Legislature was empowered to 
levy a school tax, all moneys collected from Negroes to be used for 
their education. 

With the overthrow of the Throckmorton government by the 
more radical element, and the formulation of the Constitution of 
1869, a new system of education was forced upon the people of 
Texas. That constitution and the school laws of 1870 and 1871, 
enacted pursuant thereto, provided “the most imperial system of 
education known to any American state.” The law of 1870 pro¬ 
vided for a State Superintendent with practically absolute control 
of the public schools. It provided “that each organized county in 
this state shall be a school district and the county courts thereof 
shall be ex-officio boards of school directors for their respective 
counties,” and it required four months’ compulsory attendance of 
all children between the ages of 6 and 18 years. 

This system was to be financed through a recuperated permanent 
fund, and an available fund derived from stipulated sources as 
follows: 

1. The income from the permanent fund. 

2. One-fourth of the annual revenues from general taxation. 

3. A poll tax from every voter between 21 and 60 years of age. 

4. Local taxation sufficient to provide schoolhouses for all scholastic 
inhabitants both white and black for ten months each year. 

Under the terms of the school law of 1871 the educational sys¬ 
tem was organized along military lines. A Board of Education was 
created consisting of the Governor, the State Superintendent, and 

11 Frederick Eby, Education in Texas, Source Materials, 452. 


106 


GOVERNMENT OF TEXAS 


the Attorney-General. This board had arbitrary power in school 
affairs. 12 

The tyrannical policy of the State Superintendent and of the 
Board of Education, the unnecessary increase in the number of 
employees, together with the general extravagance of the system, 
brought definite reaction. With the return to power of the Demo¬ 
crats in the election of Governor Coke the downfall of the radical 
system began. With the ratification of the Constitution of 1875 it 
was completely obliterated. That document abolished the office of 
State Superintendent and the compulsory attendance regulation, 
and placed the school age at 8 to 14 years, inclusive. Local taxation 
for building schoolhouses was prohibited, and the county school 
lands, amounting to approximately 45,000,000 acres in addition to 
the original four leagues, were placed under the control of the 
counties. By a law passed in 1876 the community school system 
was established and an ex officio Board of Education was created 
composed of the Governor, the Comptroller, and the Secretary of 
State. This board was authorized to employ a secretary whose 
duties were chiefly clerical. The county judge became the ex officio 
county school superintendent. He was authorized to appoint three 
trustees to serve while the school was in session. In their fury, the 
people had destroyed the good as well as the bad in a system which, 
if sanely administered, would have been productive of highly bene¬ 
ficial results. 

When Governor Roberts adopted the pay-as-you-go policy in 
1879, he further crippled the schools by vetoing the appropriation 
made by the Legislature for their support. He was a friend to edu¬ 
cation, however, and upon the encouragement and financial assist¬ 
ance of the agents of the George Peabody Fund he secured the re¬ 
casting of the public school laws, the establishment of the Sam 
Houston Normal Institute, the reorganization of the Agricultural 
and Mechanical College in 1879, and, in 1883, the actual opening 
of the University of Texas, “which was founded by the fathers 
of the Republic in 1839 and established by law in 1858.” O. N. 
Hollingsworth, as secretary of the Board of Education, did com¬ 
mendable service in reorganizing the school system. The educa¬ 
tional progress which followed these acts was noted by interested 
observers outside of Texas as well as by many within her borders. 
The ultimate result was the complete rewriting of the State school 
law in 1884. 

12 Frederick Eby, Education in Texas, Source Materials, 521-527, 533-535. 


STATE EDUCATIONAL ADMINISTRATION 


107 


THE LAW OF 1884 

The school law of 1884 marks an important development in 
educational administration in the State. Among the provisions of 
that law were the following: 

1. It recreated the office of State Superintendent to be filled by elec¬ 
tion, the Superintendent to have general supervision of the public 
school system. 

2. It abolished the community plan and substituted the district system 
in all but 53 counties. (In these 53 counties the system was gradu¬ 
ally changed.) 

3. Upon a vote of two-thirds of the taxpayers (changed to a majority 
by the constitutional amendment of 1908) a local school tax of 20 
cents on the $100 valuation was authorized. 

4. A State tax up to 20 cents on the $100 valuation (raised to 50 cents 
in common school districts by the amendment of 1908) for main¬ 
tenance of schools for six months of each year was authorized. 

5. The purchase of county bonds by the permanent fund was author¬ 
ized. 

The Board of Education was continued. The law also stipulated 
subjects to be taught and specified that reading must be in the 
English language. Educational progress under this law was not 
highly gratifying. 


RECENT TENDENCIES 

Legislation for several years reveals a definite trend toward 
larger units of local school control and support. In line with this 
tendency a new law enacted in 1887 created the office of county 
superintendent. In 1923 the Legislature authorized counties having 
a population of 100,000 or more to adopt by election the county 
unit form of school administration. Counties eligible under this law 
to adopt the county system are Bexar, Dallas, El Paso, Harris, and 
Tarrant. In the same year also the electors were given the right 
to determine whether the public schools should be free from 
municipal control with control vested in a board of seven members. 
In 1927 the County Board of Education, consisting of five mem¬ 
bers, was authorized, and in the same year the Legislature vested 
in these county boards, in counties containing more than 1,100 
square miles and having a population of 40,000 to 100,000, com¬ 
plete control of the schools. This portion of the act amounted to 
a special school law for Williamson County. The same law vested 


108 


GOVERNMENT OF TEXAS 


in the county boards in counties having 210,000 or more popula¬ 
tion authority to subdivide or consolidate school districts. Under 
this law Dallas County has developed the county unit plan of school 
administration. In 1929 a law created a common school district to 
include the whole of Terrell County, and Sterling County has had 
the unit system of administration since its, organization. In 1930 
the so-called “grouping law” was passed enabling common school 
districts to be consolidated with adjacent independent districts upon 
the petition of a majority of the voters and the presentation of evi¬ 
dence of financial ability to maintain high school work at reason¬ 
able cost. 

Current legislation continues to fix greater responsibility in State 
school officials for administration of public school systems. As a 
culmination of several years’ effort on the part of educational lead¬ 
ers a State Board of Education was authorized by a constitutional 
amendment in November, 1928, to supersede the ex officio board. 
On October 2, 1929, under provisions of the act of the Forty-first 
Legislature, the Board of nine lay members was organized. The 
board assumed its duties with vigor, but the period of its activities 
has been too brief for accurate appraisal of its administrative im¬ 
portance. “It may be said, however, with a large degree of assur¬ 
ance, that the hope of Texas for a unified, effective system of pub¬ 
lic education in all its phases has been brought measurably nearer 
fulfillment by the work that the State Board of Education has 
already accomplished.” 13 

Among the functions assigned the State Board of Education are 
the following: 

1. To consider and report biennially to the Governor on the financial 
needs of the public free schools. 

2. To recommend to the Governor concerning proposals for the estab¬ 
lishment of new educational institutions. 

3. To consider and report on financial needs, scope, and work of State 
institutions of higher learning, and to recommend such changes in 
their courses of study as the needs may warrant, with especial 
reference to elimination of any needless waste or duplication of 
work. 

4. To select a textbook committee of five experienced and active 
educators in the public schools of the State to examine books sub¬ 
mitted for adoption and recommend thereon to the State Board. 

5. To consider the athletic necessities and activities of the public 

13 Twenty-seventh Biennial Report of the State Department of Education , 
Bulletin No. 314, 11 ff. (1933). 


STATE EDUCATIONAL ADMINISTRATION 


109 


schools and to report biennially to the Governor the proper legal 
division of time and money to be devoted to athletics. 

6. To prescribe rules and regulations for the certification of teachers 
and for examining applicants for such certificates in accordance 
with the State laws. 14 

The members of the State Board of Education are appointed by 
the Governor with the consent of the Senate. The law provides that 
after 1935 they shall serve for six years and their terms shall over¬ 
lap so that three members shall retire biennially. The board elects 
one of its members as president and the State Superintendent is 
ex officio secretary. 

STATE DEPARTMENT OF EDUCATION 

In January, 1933, the State Department of Education required 
the services of approximately eighty employees distributed among 
eleven divisions as follows: Administration; High School Super¬ 
vision; Rural School Supervision; Special Rural School Agents; 
Vocational Education; Vocational Rehabilitation; School Plant; 
Research and Accounting; Textbook Administration; Correspond¬ 
ence and Supplies; State Board of Examiners. 15 

In July, 1933, State Superintendent L. A. Woods announced an 
important change in the organization of the Department of Educa¬ 
tion which affects very materially the method of public school ad¬ 
ministration. The Division of High School Supervision and the 
Division of Rural School Supervision are merged in one division 
whch operates as a single unit under the immediate administration 
of assistant State superintendents who are specialists in their re¬ 
spective fields. The State is divided into twenty-two districts, in 
each of which is a resident deputy State superintendent who works 
under the assistant State superintendents and, in certain counties, 
in close cooperation with the State supervisor of Negro education. 
The twenty-two deputy State superintendents administer the high 
school accrediting provisions of the law, the rural aid law, and 
otherwise cooperate in promoting the public school interests of the 
State. 

The merging of the two divisions makes possible the elimination 
of duplication of effort, and places State officials in closer contact 

14 For a discussion of school administration in Texas and other states see 
United States Office of Education Bulletin No. 20, I. 1-25, 771-800 (1931). 

15 Twenty-seventh Biennial Report of the State Department of Education, 
Bulletin No. 314, 1-22 (1933) • 


110 


GOVERNMENT OF TEXAS 


with local school authorities, patrons, and pupils in the administra¬ 
tion of the State educational system. It should also effect a curtail¬ 
ment of traveling expenses of a large number of supervisors and 
specialists for long distances to and from their offices in Austin. 

Up to this time (August, 1933) the plan has not been in opera¬ 
tion a sufficient length of time to determine its merits. However, it 
gives promise of being, as announced, the beginning of the “New 
Deal” in State educational administration in Texas. 16 

REFERENCES 

The most satisfactory references on the development of education in 
Texas are Frederick Eby, The Development of Education in Texas and 
Education in Texas, Source Material, Bulletin No. 1824, The University 
of Texas (1918). Helpful material is to be found in reports of the United 
States Bureau of Education, Department of the Interior, especially 
Bulletin No. 20, The Biennial Survey of Education, 1928-1930, two 
volumes (1931). Education legislation affecting Texas between 1822 
and 1897 will be found in H. N. P. Gammel, The Laws of Texas, ten 
volumes (1898). The more recent school laws are summarized in various 
bulletins of the State Department of Education, Austin; see especially 
Bulletin No. 297, Public School Laws of the State of Texas (1931). 
For reports of surveys of the educational system of the State, one should 
consult: Texas Educational Survey Report, vols. 1-8 (1925), The Gov¬ 
ernment of the State of Texas, Pts. 10-13, and Biennial Report of the 
State Board of Education (1930-1932). See also Judd and Hall, The 
Texas Constitution, Ch. XI. 

10 Peyton Irving, “New Deal in Texas School Control,” Dallas Morning 
News, July 28, 1933. 


CHAPTER VIII 

THE STATE JUDICIARY 

The importance of the State judicial system to the average citi¬ 
zen arises from the fact that the great mass of criminal and civil 
litigation occurs in the State courts rather than before federal 
tribunals. The functions performed by the State courts may be 
grouped in the following classes: (i) the administration of justice 
through the adjudication of civil and criminal cases; (2) the restric¬ 
tion of the Legislature to its proper sphere by judicial review; and 
(3) the enforcement of both constitutional and statutory limita¬ 
tions upon the executive by the use of the same power. 1 It is with 
the first of these—the everyday administration of justice—that this 
chapter will be chiefly concerned. 

ORGANIZATION AND JURISDICTION 

Supreme Court .—The highest Texas court in civil matters is 
the Supreme Court, which consists of a Chief Justice and two 
Associate Justices. To be eligible for the supreme bench, a person 
must be a citizen of this State and of the United States, thirty 
years of age, and must have been a practicing lawyer or a judge 
of a court, or both together, for at least seven years. The justices 
of the Supreme Court are elected by popular vote for six-year 
terms, and receive an annual compensation of $6,000. Vacancies 
in the Supreme Court are filled through appointment by the Gov¬ 
ernor for the period intervening before a general election. 2 

The appellate jurisdiction of the Supreme Court extends to 
questions of law in the following cases which have been carried 
to the Courts of Civil Appeals from the trial courts: (1) those 
in which judges of the Courts of Civil Appeals are not agreed 
upon a material question of law; (2) those in which a Court of 
Civil Appeals reverses itself or holds contrary to a decision of 
another Court of Civil Appeals or of the Supreme Court; (3) 

1 A. N. Holcombe, State Government in the United States, 3d ed., 450 
(i93i). 

2 Constitution, Art. V, sec. 2. 


hi 


112 


GOVERNMENT OF TEXAS 


those involving the construction or validity of an act of the Legis¬ 
lature; (4) those involving the revenues of the State; (5) those 
to which the Railroad Commission is a party; and (6) those in 
which it appears that the Court of Civil Appeals has committed an 
error of substantive law. 3 The court may issue the various writs 
such as habeas corpus, mandamus, procedendo, certiorari, and 
others necessary to enforce its jurisdiction. It may sit at Austin for 
the transaction of business at any time during the year, and each 
term shall begin and end with each calendar year. ' 

The Supreme Court appoints a clerk for a term of four years 
subject to removal at any time. 4 The clerk collects the fees and 
costs in cases in the court, and files and preserves its records and 
papers. His salary is $3,000 per annum. There are other employees, 
including several stenographers, a reporter, and a librarian. 

Commission of Appeals .—After an investigation of the judi¬ 
cial system, a committee of the Legislature in 1918 recommended 
that a commission of six persons, to sit in two divisions, be created 
temporarily to relieve the congestion in the Supreme Court by aid¬ 
ing it in the disposition of the numerous cases on the docket. 5 This 
suggestion was complied with, and the Commission of Appeals, 
consisting of Sections A and B with three members each, was 
established, and has been renewed from time to time until it is 
apparently a permanent ancillary. Its members have the same quali¬ 
fications as justices of the Supreme Court, and are appointed by the 
Supreme Court. The members receive a salary of $5,500 per year. 
The Commission hears “the submission of causes under such rules 
and regulations as may be prescribed by the Supreme Court and 
such court may adopt the opinion prepared by any member of the 
said Commission and make the same the judgment of the Supreme 
Court.” 6 

Court of Criminal Appeals .—The supreme tribunal for criminal 
matters in Texas is the Court of Criminal Appeals. It consists of 
three judges who have the same qualifications and salary as justices 
of the Supreme Court, and who are likewise elected by the qualified 
voters of the State for terms of six years. Vacancies are filled 
through appointment by the Governor. 7 

3 Revised Civil Statutes, I, art. 1728 (1925) ; Laws, 40th Leg., reg. sess., 
214-216 (1927). 

4 Constitution, Art. V, sec. 3. 

B Reports of Subcommittees of the Central Investigating Committees of the 
House and Senate, 35th Leg., 3d called sess., 673 (1918). 

6 General Laws, 41st Leg., 5th called sess., 112-114 (1930). 

7 Constitution, Art. V, sec. 4. 


113 


THE STATE JUDICIARY 

The Court of Criminal Appeals has appellate jurisdiction in all 
criminal cases, with the exception of cases appealed from an in¬ 
ferior court to a county court in which the fine imposed by the 
county court does not exceed $ioo. 8 It also has the power to issue 
writs of habeas corpus and other writs necessary to enforce its 
jurisdiction. The term of this court is the same as that of the 
Supreme Court, and it appoints a clerk for a four-year term. 9 

Commission of Appeals for Court of Criminal Appeals. —In 
1925 the Legislature created a Commission of Appeals, consisting 
of two attorneys having the qualifications required for judges of 
the Court of Criminal Appeals, to aid the Court of Criminal Ap¬ 
peals in disposing of the business before it. The Commission is 
appointed by the Governor with the advice and consent of the Sen¬ 
ate. Its members receive salaries of $5,500 per year. The Com¬ 
mission discharges such duties as are assigned to it by the Court; 
its opinions are submitted to the Court, and when approved have 
the same weight and legal effect as if originally prepared and handed 
down by it. 10 

Courts of Civil Appeals. —The State is divided into eleven Su¬ 
preme Judicial Districts, in each of which there is a Court of Civil 
Appeals consisting of a Chief Justice and two Associate Justices 
with the qualifications requisite for membership in the Supreme 
Court. 11 These justices are elected by the qualified voters of their 
respective districts for terms of six years, and receive an annual 
salary of $5,160 each. A clerk is appointed by each court. 

The appellate jurisdiction of the Courts of Civil Appeals ex¬ 
tends to the following civil cases within the limits of their respec¬ 
tive districts: (1) those of which the district court has original or 
appellate jurisdiction; (2) those of which the county court has 
original jurisdiction; and (3) those of which the county court has 
appellate jurisdiction when the amount in dispute exceeds $100, 
exclusive of interest and costs. 12 The judgment of the Courts of 
Civil Appeals is conclusive in all cases as to fact, and conclusive 
as to law with the exception of those cases over which the Supreme 
Court exercises appellate jurisdiction and certain others specifically 
exempted by statute. 13 

8 Code of Criminal Procedure, art. 53 (1925). 

9 Constitution, Art. V, sec. 5. 

10 General Laws, 39th Leg., reg. sess., 269-270 (1925). 

11 These courts sit at Galveston, Fort Worth, Austin, San Antonio, Dallas, 
Amarillo, El Paso, Beaumont, Waco, Texarkana, and Eastland. 

12 Revised Civil Statutes, I, art. 1819 (1925). 

13 Ibid., arts. 1820-1821. 


114 


GOVERNMENT OF TEXAS 


District Courts .—The chief trial court in Texas is the district 
court. There are 127 ordinary and criminal district courts and two 
temporary special district courts. 14 The qualified voters of the dis¬ 
trict elect the district judge for a four-year term. He must be a 
citizen of the United States and of this State, a resident of the dis¬ 
trict for two years, and must have been a practicing lawyer or a 
judge of a court for four years. He receives a salary of $4,000 
annually. 15 

The original jurisdiction of the ordinary district court extends 
to all criminal cases of the grade of felony; suits in behalf of the 
State to recover penalties, forfeitures and escheats; all cases of 
divorce; all misdemeanors involving official misconduct; suits for 
damages for slander or defamation of character; all suits involv¬ 
ing the title to land and the enforcement of real estate liens; suits 
either in law or equity when the matter in controversy is $500 or 
more; and contested elections. The district courts have the power 
to issue writs of habeas corpus, injunction, mandamus, certiorari, 
and other writs necessary to enforce their jurisdiction. In a few 
districts special criminal district courts have been set up to handle 
criminal cases, leaving all civil matters to the ordinary district 
courts. The district courts have appellate jurisdiction and general 
control in probate matters over the county court of each county, 
and appellate jurisdiction and general supervisory control over the 
commissioners’ court. 16 

In each county there is a clerk of the district court, elected by 
the qualified voters of the county for a term of two years. 17 In 
counties with less than 8,000 population the functions of the clerk 
of the district court are performed by the clerk of the county court. 

In all cases in the district courts either party upon application in 
open court has the right of trial by jury. In civil cases no jury is 
used unless demanded by one party to the suit, who must pay the 
jury costs. Grand and petit juries in the district courts are com¬ 
posed of twelve persons. Nine members of a grand jury, however, 
constitute a quorum. 18 

Administrative Judicial Districts .—By an act of the Fortieth 
Legislature, for the purpose of expediting business in the various 
district courts, the State was divided into nine Administrative Judi- 

14 General Lazos, 43d Leg., reg. sess., 120-121 (1933). 

15 Constitution, Art. V, sec. 7. 

18 Revised Civil Statutes, I, arts. 1906-1918 (1925). 

17 Constitution, Art. V, sec. 9. 

18 Ibid., Art. V, secs. 10 and 13. 


THE STATE JUDICIARY 


115 


cial Districts. 19 One of the district judges within each administra¬ 
tive district is designated by the Governor as the Presiding Judge 
of his administrative district. The clerk of the district from which 
the Presiding Judge is selected performs the duties of the clerk of 
the administrative district. 

The Presiding Judge calls an annual conference of the district 
judges of the administrative district for consultation as to the 
state of business in the several district courts, and for arranging 
the disposition of business pending on the various dockets. The 
district judges lay before the conference a list of cases pending in 
their courts and such other information as the conference may re¬ 
quire. It is the duty of the Presiding Judge to assign any of the 
judges to hold special or regular terms of court in any county of 
the administrative district in order to dispose of accumulated busi¬ 
ness. The conference has the power to prescribe rules facilitating 
the order of trials and such other rules as are necessary to carry 
the act into operation. 

To dispose of excess litigation the district judge of any district 
may extend the regular terms of his court and call special terms 
when necessary. The Presiding Judge of one administrative dis¬ 
trict may call upon the Presiding Judge of another district to fur¬ 
nish judges to dispose of litigation. 

County Courts .—In each county of the State there is a county 
court, presided over by a county judge, who is required to be 
“well informed in the law,” and who is elected biennially by the 
qualified voters of the county. 20 The county court has original ju¬ 
risdiction of misdemeanors of which exclusive original jurisdiction 
is not given the justices’ courts and when the fine to be imposed 
exceeds $200. Its exclusive original civil jurisdiction extends to 
cases in which the matter in controversy is at least $200 and does 
not exceed $500. It has concurrent original jurisdiction with the 
district court when the matter in litigation lies between $500 and 
$1,000. The county court exercises appellate jurisdiction in crimi¬ 
nal cases in which the justices’ courts have original jurisdiction, 
and in civil cases from the justices’ courts when the judgment ex¬ 
ceeds $20 exclusive of costs. Appeal may be had from the judg¬ 
ment of the county court to the Court of Civil Appeals or to the 
Court of Criminal Appeals. 

General probate jurisdiction is exercised by the county court. 

10 General and Special Laws, 40th Leg., reg. sess., 228-231 (1927). 

20 Constitution, Art. V, sec. 15. 


116 


GOVERNMENT OF TEXAS 


It probates wills, appoints guardians of minors, idiots, lunatics, 
persons non compos mentis, and common drunkards. Other simi¬ 
lar powers are vested in the county court, and it also has the power 
to issue writs of habeas corpus and the other customary remedial 
writs to enforce its jurisdiction. 21 

The Legislature has the power to diminish or change, by local 
or general law, the civil and criminal jurisdiction of the county 
courts. To determine the powers and jurisdiction of a specific 
county court, it is often necessary to refer to the acts of 
the Legislature. 22 Exercising this power the Legislature has 
created “County Courts at Law” in several counties. These 
courts have been necessary to care for the business placed upon 
the county court in the more populous centers. Ordinarily the 
“County Court at Law” is vested with the civil and criminal 
jurisdiction of the county court, leaving the original court with 
its probate jurisdiction. In another instance a county has two 
“County Courts at Law,” one exercising civil jurisdiction, the 
other criminal, and the original county court retaining its probate 
powers. 

For each county a clerk of the county court is elected by the 
qualified voters for a two-year term. In counties with a popula¬ 
tion of less than 8,000 the county clerk is also clerk of the district 
court. He is always ex officio clerk of the commissioners’ court and 
recorder for the county. 23 

Justices' Courts .—The lowest court in the Texas judicial sys¬ 
tem is that of the justice of the peace. Each organized county is 
divided into not less than four nor more than eight justices’ pre¬ 
cincts. In each precinct there is elected biennially a justice of the 
peace and a constable. In precincts where there is a city of 8,000 
inhabitants or more, two justices of the peace are elected. Justices 
of the peace have jurisdiction in criminal matters where the pen¬ 
alty or fine to be imposed is not more than $200, and in civil 
cases where the amount in controversy is $200 or less, of which ex¬ 
clusive original jurisdiction is not given to some higher court. Ap¬ 
peals from the decisions of the justice court in civil matters may 
be carried to the county court in matters involving more than $20 
and in all criminal cases subject to legislative regulation. 24 In 

21 Constitution, Art. V, sec. 16; Revised Civil Statutes, I, arts. 1949-1960 

(1925). 

22 Constitution, Art. V, sec. 22. 

23 Revised Civil Statutes, I, arts. 1935-1948 (1925). 

24 Constitution, Art. V, secs. 18-19. 


117 


THE STATE JUDICIARY 

municipalities the recorders’ courts have criminal jurisdiction con¬ 
current with that of the justices’ courts. 25 

Prosecuting Officers .—A State Prosecuting Attorney, appointed 
by the Court of Criminal Appeals, represents the State in all ac¬ 
tions before that court. Elective district and county attorneys exer¬ 
cise similar functions before the district and county courts. 

Advisory Civil Judicial Council .—After considerable agitation 
by the Texas Bar Association, the Forty-first Legislature passed a 
bill drafted by representatives of the Association creating an Ad¬ 
visory Civil Judicial Council. 26 The Texas advisory council is 
modeled closely upon similar councils in other states. It consists of 
the Chief Justice of the Supreme Court, two Justices of the Courts 
of Civil Appeals, to be designated by the Governor, two Presiding 
Judges of the Administrative Judicial Districts, two members of 
the Legislature (the chairman of the Senate and House committees 
on civil jurisprudence), seven practicing attorneys selected from a 
list of eight lawyers designated by the Bar Association, and two 
laymen, one of whom must be a journalist. All appointments are 
made by the Governor. The terms of the ex officio members 
end with their official term, while the other members serve for 
six years. 

It is the duty of the council to make a continuous study of the 
organization, procedure, and results of the civil courts to the end 
that procedure may be simplified, business expedited, and justice 
better administered. The results of its researches are embodied in 
annual reports to the Governor and the Supreme Court in which 
recommendations are made for the betterment of the system. 

The council has power to hold public meetings and require the 
attendance of witnesses and the production of books and docu¬ 
ments. It may require reports from all civil courts of the State, 
administer oaths, and take testimony. It may appoint committees 
from its membership and delegate to them such of its powers as it 
deems necessary. 

25 The county courts, district courts, and criminal district courts have origi¬ 
nal jurisdiction of cases involving delinquent children. When such a court 
is acting in this capacity it is known as a “Juvenile CoUrt.” See Revised Civil 
Statutes, I, arts. 2329-2338 (1925) and Code of Criminal Procedure, arts. 
1083-1093 (1925). The commissioners’ courts are established by the judiciary 
article of the Constitution, but as they are in reality administrative bodies 
they are discussed in the chapter dealing with local government. 

28 Laws, 41st Leg., 1st called sess., 51-54 (1929); J- W. McClendon, “An 
Advisory Civil Judicial Council for Texas,” Proceedings Texas Bar Associa¬ 
tion, XLVII, 33-49 (1928). 


118 


GOVERNMENT OF TEXAS 


CRITICISMS OF PRESENT SYSTEM 

One does not have to go to the ranks of the professional re¬ 
former to find critics of the existing Texas judicial system. The 
most vigorous critics of the present arrangement are to be found 
among the lawyers and judges of the State. Their attacks are di¬ 
rected principally against (i) the judicial organization, (2) pro¬ 
cedure, and (3) the method of selection and the tenure of the 
personnel. 

Organization .—The disintegrated condition of the State judi¬ 
cial system is a very grave defect, in the opinion of many lawyers 
and judges. The Texas system is criticized, in the first place, be¬ 
cause it is a two-headed arrangement. The Supreme Court is the 
final tribunal in civil matters, while the Court of Criminal Appeals 
is supreme in criminal causes. In several instances these two su¬ 
preme courts have been in disagreement as to the constitutionality 
of acts of the Legislature. 27 Likewise differences in holdings are 
bound to appear in the decisions of the various Courts of Civil 
Appeals which must be rectified by the Supreme Court. 

The lack of an integrating mechanism over the lower courts 
causes them not to form a single system, but to be an aggregation 
of uncorrelated and uncoordinated agencies. The act creating the 
Administrative Judicial Districts was a step in the right direction, 
but in some respects it complicated matters. Instead of a single 
system, there are nine systems. But there is even further lack of 
unity. Each judge, being politically responsible to the voters of his 
district, feels no great responsibility for the whole system, and a 
diversity in efficiency of law enforcement and in practice and pro¬ 
cedure is likely to grow up. Inequalities in the distribution of work 
may exist, and there is no conference and consultation of the judi¬ 
ciary of the entire State to create a wholesome esprit de corps . 28 

The Supreme Court is too small to care for the many appeals 
which it must decide, while, on the other hand, it has been said 

27 In Ex parte Lezvis, 73 S. W. 811 (1903), the Court of Criminal Appeals 
held unconstitutional a provision of the Galveston charter calling for the ap¬ 
pointment of certain city officials by the Governor, while in Brown v. Gal¬ 
veston, 97 Tex. 1 (1903) the Supreme Court upheld the same provision. In 
Ex parte Francis, 165 S. W. 147 (1914) and Ex parte Mode, 180 S. W. 708 
(1915), the Court of Criminal Appeals upheld a local option pool hall law, 
while in Ex parte Mitchell, 177 S. W. 953 (1915) the Supreme Court de¬ 
clared the same law invalid. 

28 C. S. Potts, “Unification of the Judiciary; A Record of Progress,” Texas 
Law Review, II, 445-463 (1924). 


119 


THE STATE JUDICIARY 

that there are too many judges of the lower courts. “For the popu¬ 
lation and business it is doubtful that any state in the Union has 
as many judges as Texas, which has about four hundred and 
twenty, not counting magistrates and justices of the peace.” 29 
This large organization, together with other factors, makes the ex¬ 
pense of the judiciary very great. The total cost of operation of 
the appellate and district courts to the State in 1931 was $2,686,- 
460. 30 This sum does not include the expenditures of the county, 
justice of the peace, and corporation courts. 

Procedure. —Procedure in the Texas courts is regulated almost 
entirely by legislative act. An intricate body of procedural law has 
been built up, and as a result the courts have come to stress pro¬ 
cedural form rather than substantive rights. Piecemeal legislation 
has failed to remedy the cumbersomeness of the body of civil 
procedure, and consequently it has not developed as rapidly as the 
demands upon it. “It is held in the iron grip of hundreds of years 
of precedents, and of statutes, many of which were passed thirty, 
forty, sixty, seventy-five years ago, for the regulation of court 
quarrels arising under frontier and pioneer conditions. . . . We 
are still trying in 1924 to handle court business with the primitive 
tools made in 1836.” 31 

The control of judicial procedure by statute is wrong in theory, 
it is asserted. The judiciary has nothing to do with the rules of 
legislative procedure. That is left to the Legislature. They believe 
that the judiciary should likewise frame its own rules of procedure, 
for it is better fitted by training, experience, and knowledge to do 
this. The numerous appeals and retrials permitted under our sys¬ 
tem of procedure result in vexing delays and unnecessarily great 
expense, often defeating justice entirely. Every possible appeal is 
usually taken. “In Texas the lawyers seem more persistent [than 
in Missouri, Kentucky, Arkansas, and Tennessee], for the feeling 
here often is that the fight is merely begun with the first trial.” 32 

When cases reach the appellate courts, they are scrutinized with 
great care to insure that procedural statutes have been minutely 
followed and with less emphasis upon the rendering of substantial 

29 S. B. Dabney, “Judicial Reconstruction,” Texas Law Review, VI, 307 
(1928). 

30 The Government of the State of Texas, Pt. 4: 6. 

31 R. S. Baker, “The Bar Association’s Legislative Program—Judicial Con¬ 
trol of Procedure,” Texas Law Review, II, 422-434 (1924). 

32 S. B. Dabney, “Judicial Reconstruction,” Texas Law Review, VI, 308 
(1928). 


120 


GOVERNMENT OF TEXAS 


justice. In 1917 it was estimated that of the cases appealed to the 
Courts of Civil Appeals, about forty per cent were reversed, and 
approximately seventy-five per cent of the reversals were for tech¬ 
nical or procedural errors. 33 

The jury has usurped the rightful position of the trial judge, and 
furthermore is an anachronism. The position of the judge has been 
reduced to that of a “mere moderator.” He may not comment upon 
the evidence, the credibility of witnesses, or guide the jury in its 
deliberations. The grand jury has generally become the rubber 
stamp of the prosecuting attorney, and if it wishes, it may refuse 
to indict and substitute its will for that of the State. The civil trial 
jury is overwhelmed by the technicalities of a complicated con¬ 
troversy, and its verdicts in such instances are often unjust. The 
selection of the criminal trial jury is a long, drawn out process, and 
the results of its operation subject the courts of justice to ridicule. 

Personnel .—Popular election brought the judiciary to its pres¬ 
ent low estate, in the opinion of most critics. An able judge must 
be an expert and a scholar, and “hand-shaking, baby-kissing cam¬ 
paigns” are not made by genuine students of the law to secure 
a colorless position carrying with it a much lower salary than pri¬ 
vate practice would bring. One attorney has described with sad¬ 
ness the melancholy spectacle of a candidate for the dignified and 
honorable post of Chief Justice of the Supreme Court of the State 
of Texas standing on the sidewalk, handing out cards and cam¬ 
paign literature to the passers-by. 34 Even when men really learned 
in the law offer themselves for election, the electorate can not be 
relied upon to choose them. The independence of the judiciary is 
destroyed by popular election, and the judge is forced to administer 
justice to please the dominant faction in his jurisdiction. 35 

The short tenure of judges, especially in the lower courts, prac¬ 
tically subjects their judicial policies to popular referenda. Al¬ 
though judges in Texas receive fairly good compensation, the 
salaries are not large enough to command the continuous services 
of able judges. Most capable judges retire after a relatively short 
service to a lucrative private practice. The effect of these factors 
has been to reduce public confidence in the judiciary, probably 
with a modicum of justification. Besides creating a disrespect for 

33 M. S. Brame, The System of Courts and the Administration of Justice 
in Texas, 81 (Master’s Thesis, University of Texas, 1917). 

34 Proceedings Texas Bar Association, XLII, 31 (1924). 

35 C. P. Patterson, “The Courts of the Southwest,” Southwestern Political 
Science Quarterly, III, 82-83 (1922). 


THE STATE JUDICIARY 121 

law in general, this condition stimulates appeals which are usually 
justified, it being a notorious fact that a large portion of cases 
appealed from the trial courts are reversed. “If our trial courts 
had more the confidence of lawyers and litigants, there probably 
would not be half these reviews.” 36 

SUGGESTED REFORMS 

Movement for Judicial Reform .—Almost continuously since the 
adoption of the present judiciary article of the Constitution in 
1891, there has been dissatisfaction with its provisions. By 1910 
the intermittent mutterings had assumed the form of a fairly per¬ 
sistent movement for judicial reconstruction. In the Proceedings 
of practically every convention of the Texas Bar Association since 
that time, there is to be found some proposal for reform or a dis¬ 
cussion of some of the defects of the judicial system. 

The Thirty-third Legislature in 1913 proposed a constitutional 
amendment which, if adopted, would have authorized more than 
one judge in a district and raised qualifications for district judges 
from four to six years’ practice. The next Legislature submitted 
an amendment increasing the Supreme Court to five members, 
which was also defeated. 37 

During the following three years sentiment for judicial re¬ 
organization grew rapidly and the Texas Bar Association at its 
1918 meeting practically unanimously approved a draft of a judi¬ 
ciary article to be recommended to the Legislature. This article was 
largely the work of Samuel B. Dabney, of Houston, who had made 
a first-hand study of the Canadian judicial system. This proposal 
would have effected a thorough reorganization of the judicial sys¬ 
tem, its merit being indicated by the fact that it was highly praised 
by Dean Roscoe Pound. 38 A constitutional amendment which 
would have enabled the Legislature to adopt most of the sugges¬ 
tions of the Bar Association passed the House, but died in a Senate 
committee. 39 

The frequently repeated proposal of the Bar Association that 
nominations for judicial offices be made by convention instead of 
by direct primary was considered by the Legislature in 1921. The 

38 S. B. Dabney, “Judicial Reconstruction,” Texas Law Review, VI, 307 
(1928). 

37 Irvin Stewart, “Constitutional Amendments in Texas,” Southwestern 
Political Science Quarterly, III, 151 (1922). 

38 Journal of the American Judicature Society, II, 131-144 (1919). 

39 Senate Journal, 36th Leg., reg. sess., 1433 (1919)* 


122 


GOVERNMENT OF TEXAS 


Senate passed a bill to that effect which died in the House. 40 The 
Thirty-ninth Legislature failed to pass by the necessary two-thirds 
vote a resolution submitting a constitutional amendment increasing 
the size of the Supreme Court, and the House Committee on Con¬ 
stitutional Amendments reported adversely a Senate Joint Resolu¬ 
tion proposing an increase in the membership of the Court of 
Criminal Appeals to five justices. 41 

Governor Dan Moody, who has been a consistent advocate of 
judicial reform, recommended to the Fortieth Legislature that it 
submit to the people a general revision of the judiciary article of 
the Constitution. He suggested that the size of the Supreme Court 
be increased to nine justices and that it be given power to establish 
rules of procedure in civil cases with the aid of an advisory body. 
He advocated the limitation of the right of appeal in criminal cases, 
and the endowment of the Supreme Court with power to require 
reports from the district judges as to the status of their dockets 
and to assign district judges to crowded courts to expedite busi¬ 
ness. 42 An amendment was proposed enlarging the Supreme Court, 
allowing the Legislature to increase the size of the Court of 
Criminal Appeals, and empowering the Supreme Court to assign 
district judges, but it was voted down by the people. 43 The same 
session adopted an act giving a certain amount of unity to the 
judicial system by the creation of the Administrative Judicial Dis¬ 
tricts, following closely a recommendation made by the Bar Associ¬ 
ation in 1924. 44 

In his message to the Forty-first Legislature Governor Moody 
renewed the suggestions made to the preceding Legislature. En¬ 
largement of the Supreme Court, restriction of the right of appeal 
in criminal cases, abolition of terms of district courts and the sub¬ 
stitution of continuous sessions, and the reform of the fee system 
were advocated. 45 An amendment enlarging the Supreme Court 
was submitted but failed to carry in the popular referendum. 46 This 
Legislature adopted the proposal of the Bar Association to create 
an Advisory Civil Judicial Council. 

Continuous terms of the Supreme Court were authorized by 

40 Senate Journal, 37th Leg., reg. sess., 1204 (1921). 

41 House Journal, 39th Leg., reg. sess., 1441, 1826 (1925). 

42 Ibid., 40th Leg., reg. sess., 102-104 (1927). 

43 Laws, 40th Leg., reg. sess., 468-472 (1927). 

44 Proceedings Texas Bar Association, XLIII, 31 (1924). 

45 House Journal, 41st Leg., reg. sess., 29-30 (1929). 

40 Laws, 41st Leg., reg. sess., 711-713 (1929). 


THE STATE JUDICIARY 


123 


a constitutional amendment adopted in November, 1930. 47 A num¬ 
ber of specific recommendations of the Civil Judicial Council as to 
improvements in civil procedure have been accepted by the Legis¬ 
lature, but that body has given scant consideration to the Council’s 
proposals for the nomination of all district and appellate judges 
by conventions and for a constitutional amendment providing a 
unified court system. 48 

It is remarkable that there could be so much fruitless effort. 
The meager results of the movement are partly explained by the 
lack of unanimity within the Bar Association itself, and the further 
fact that comparatively few of the lawyers of the State are ac¬ 
tively affiliated with the Association. The apathy of the electorate 
and potent ‘'grudge opposition” have defeated several of the pro¬ 
posed constitutional amendments. 

Judicial Reorganization. —Practically all legal experts are agreed 
that one of the fundamental reforms necessary in our judicial sys¬ 
tem is a simple, unified court organization with a responsible ad¬ 
ministrative head. 49 The vogue of this concept is an outgrowth of 
the epoch-making English Judicature Acts of 1873 and 1875. 50 The 
general principle received the approval of a committee of the 
American Bar Association in 1909, 51 and the idea has been reduced 
to concrete proposals by the American Judicature Society. 52 The 
unification of the federal court system has served as a powerful 
stimulus to the reorganization of the State courts. The adoption 
of the collegial or unit system for the Texas court organization 
would involve the elimination of all jurisdictional lines between 
courts by merging the whole judicial power in one “general court 
of judicature.” All of the judges of the State would be included 
in the personnel of this court, which would be under the supervision 
of the chief justice, whose duty would be to keep the whole ma¬ 
chinery of justice moving along in an orderly and speedy manner. 53 

47 General Laivs, 426 Leg., reg. sess., XVI (193 1 ) • 

48 Dallas Morning News, February 28, November 29, 30, 1932; February 2, 
July 9, 14, 1933. 

49 See H. H. Brown, “Five Points in Judicial Reform,” Journal of Ameri¬ 
can Judicature Society, XII, 124-126 (1929), and S. B. Dabney, “Court Or¬ 
ganization; the Superiority of the Unit or Collegial System to the Existing 
Divided System,” Texas Law Review, V, 377 - 39 1 ( I 9 2 7 )- 

50 A. M. Kales, “The English Judicature Acts,” Journal of American Judi¬ 
cature Society, IV, 133-146 (1921). 

61 Report of American Bar Association, XXXIV, 578 ff. (1909). 

52 “Second Draft of a State-Wide Judicature Act,” Bulletin of American 
Judicature Society, VII-A (1917). 

53 The Texas Supreme Court has refused to exercise administrative powers 


124 


GOVERNMENT OF TEXAS 


Proposals for the establishment of the unified system usually 
provide for several permanent branches of the single great court. 
A typical reorganization scheme is one recently made by S. B. 
Dabney. 54 He would vest the judicial power in a supreme court, 
district courts, and magistrates’ courts. The supreme court would 
consist of one chief justice and not less than eight associate justices 
to sit in at least two divisions, civil and criminal, with as many more 
sections as might be necessary. The present supreme judicial dis¬ 
tricts would be retained and the Associate Justices of the Courts 
of Civil Appeals would become circuit judges with administrative 
powers over the district courts within their supreme judicial dis¬ 
trict. A district court would be established for each organized 
county, such court to be open throughout the year and to be pre¬ 
sided over by a circuit judge, a district judge, a justice of the 
supreme court, or a probate judge. The circuit judges of each 
supreme judicial district would meet periodically to assign them¬ 
selves and the district judges to the various district courts. The 
district court would assume the jurisdiction of the present district 
and county courts and could sit in divisions, en banc, or merely 
operate with a single judge. With this flexible organization any 
situation could be met. Magistrates’ courts would be created under 
this scheme to handle present justice court cases. Circuit justices 
might be called up to sit on the supreme bench to relieve conges¬ 
tion. 55 

The proponents of such an organization claim that it would be 
sufficiently flexible to cope continuously in an effective fashion 
with the problem of the administration of justice. Crowded dock¬ 
ets in one locality could be readily cleared by special judges dis¬ 
patched to the scene by the administrative head. Judges might be 


over the court system delegated to it by the Legislature. Such duties, it said, 
have no relation to its judicial duties “as constitutionally defined.” Further¬ 
more, the Court was crowded with litigation making it practically impossible 
for it to assume these additional functions. —In re House Bill No. 537, 256 

S. W. 575 (1923). 

54 S. B. Dabney, “Judicial Reconstruction,” Texas Law Review, VI, 302- 
326 (1928). 

55 This plan apparently would prevent the creation of a top-heavy and un¬ 
wieldy structure by the element of devolution included. The idea to have 
circuit judges perform administrative duties for their districts is an adapta¬ 
tion of the present administrative judicial districts and also solves the prob¬ 
lem of what to do with the justices of the Courts of Civil Appeals. The plan 
more practically fits the unified system to a state with the territorial extent 
of Texas. Cf. Journal of American Judicature Society, II, 133-144 (1919), 
where an earlier proposal by Mr. Dabney is printed. 



125 


THE STATE JUDICIARY 

called up from the lower courts to aid the supreme court in times 
of peak load. A specialized personnel could be developed because 
of the power to assign judges to certain kinds of cases. In short, 
such an organization would be truly a system which could be con¬ 
stantly and conveniently adjusted to the ever changing problems 
faced by the courts. 

The judicial organization of the State is added to by almost 
every session of the Legislature in an effort to make it adequate 
for the exigencies of the situation, but legislative control is inter¬ 
mittent and rigid. Experience has shown that a Texas village may 
become a flourishing petroleum metropolis between sessions of the 
Legislature. The local courts get far behind on their dockets before 
the Legislature meets and creates another district court. The uni¬ 
fied court could immediately fit itself to such a situation by the 
assignment of additional judges. In an effort to relieve the Supreme 
Court, various Courts of Civil Appeals have been created from time 
to time. Every first-class city constantly lobbies for such a court. 
The creation of these appellate courts does not touch the funda¬ 
mental problem—the condition of the trial court and the procedure 
which makes necessary and possible so many appeals and reviews. 

Procedural Reform .—The primary change involved in a thor¬ 
ough reform of procedure would be a change in the rule-making 
agency. The Texas Bar Association has consistently advocated that 
the rule-making power be vested exclusively in the Supreme Court 
aided by a committee of lawyers. 56 Lawyers and judges, being ex¬ 
pert in the law, would be able to frame a system of procedure far 
superior to rules jammed through the Legislature. The minutiae of 
legal procedure are to be conjured with only by the lawyers, but 
some of the reforms of a general nature which have been advo¬ 
cated are as follows: (i) a reduction in the number of retrials and 
appeals; (2) emphasis upon substantial justice rather than pro¬ 
cedural exactitudes; (3) directory rather than mandatory rules of 
procedure; and (4) restoration of the presiding judge to a posi¬ 
tion of dominance in the court room. 

The position of the jury in court procedure has been the subject 
of much recent debate and discussion. The trial jury is not manda¬ 
tory in civil cases in Texas, but a demand for it is usually made 
by one party whose interest it is to do so. With an increased ability 
of the bench, the civil trial jury would probably decline in impor- 

56 Proceedings Texas Bar Association, XLIII, 29 (1924) ; ibid., XLIV, 5 7 

(1925); ibid.fX LV, 171 (1926). 


126 


GOVERNMENT OF TEXAS 


tance. Nevertheless, in the hearing of complicated and technical 
disputes the ordinary jury is very much at sea, and consequently 
its verdict is more or less guesswork. The abandonment of the trial 
jury in the more important criminal cases is not being seriously 
proposed. It would, however, be greatly aided in its deliberations by 
empowering the judge to instruct it on both the law and the evi¬ 
dence. The disposition of the grand jury is a matter of debate. One 
group avers that it has become merely a rubber stamp and conse¬ 
quently a useless accessory to the prosecuting attorney. The others 
point out that the grand jury renders a highly beneficial service in 
adapting to practical conditions and expediencies highly idealistic 
legislative acts which might be obeyed uniformly only in a Utopian 
society. 57 

Improvement of Personnel .—In the opinion of certain advocates 
of judicial reform, the paramount need is the improvement of the 
personnel of the judiciary. “No system of practice and procedure, 
whether made by legislators or courts,” says Judge H. D. McDon¬ 
ald, “can make good judges out of poor ones, and only a competent 
judiciary can render efficient service under any system.” 58 The 
problem is, therefore: How may capable men be attracted to the 
bench ? 

As has been indicated, the selection of judges by popular elec¬ 
tion does not attract the best of talent. Among the alternatives are: 
(i) appointment by the chief executive for specified terms or for 
life; (2) election by the Legislature; (3) appointment by a chief 
justice'popularly elected; and (4) nomination by the Governor or 
by the bar. Most of the leading legal scholars are inclined to be¬ 
lieve that appointment by the executive is the best method of selec¬ 
tion. 59 To espouse such a principle would, of course, not be politi¬ 
cally expedient in Texas, and is, therefore, out of the question as 
a practical proposition. One of the leading lawyers of the State 
has ventured the suggestion of a bar primary. 60 The Bar Associa¬ 
tion has in recent years attempted to secure the adoption of an 
act providing for a return to the convention method of nomination 

67 See C. P. Patterson, “The Jury System of the Southwest,” South¬ 
western Political and Social Science Quarterly, IV, 221-237 (1924). 

58 Proceedings Texas Bar Association, XLIII, 31 (1924). 

B9 J. P. Hall, “The Selection, Tenure and Retirement of Judges,” Journal 
of American Judicature Society, III, 33-52 (1919). 

60 A. H. McKnight, “How Shall Our Judges Be Selected?” Texas Law 
Review, V, 470-473 (1928). 


THE STATE JUDICIARY 


127 


for judicial officials. In one meeting of the Association it was ar¬ 
gued that conventions are ordinarily dominated by lawyers, who, 
being particularly interested in securing capable judges, and, more¬ 
over, knowing a good judge from a demagogue, would nominate 
able and learned men to the bench. 61 This proposition has merit 
when the elevating effect of strong bar endorsement upon the elec¬ 
tion of the judiciary of other states, particularly Wisconsin, is 
considered. 

Other angles of the personnel problem are the questions of 
tenure, retirement, and compensation. The terms served by judges 
in Texas are generally thought to be entirely too short. The public 
is deprived of the services of judges who make such work the 
career of a lifetime. Usually judgeships are just stepping stones in 
an individual’s career. By increasing compensation and providing 
an adequate retirement system it is likely that the problem of 
tenure would be solved. Texas judges receive about the average 
salary paid to state judges, but far less than the maximum. New 
York, for instance, pays her chief justice $25,000 annually. Fed¬ 
eral district judges are paid $10,000 per year. If judges were ap¬ 
pointed for life or stood for reelection indefinitely, some system of 
retirement would have to be established. The lack of such a system 
is probably one reason for short tenure. The problem of deciding 
when a judge should be retired because of old age or incapacity 
is an embarrassing one, but after such retirement adequate pen¬ 
sions should be provided. 

Lawyers themselves are officials of the courts and they are con¬ 
stantly endeavoring to raise the standards of their profession. In 
the first place, educational qualifications to secure a license to 
practice are being raised. Second, more effective means are being 
sought to purge the profession of the less desirable element al¬ 
ready practicing. The most commonly proposed panacea is the “self- 
governing bar.” Under this plan the State Bar Association would 
be incorporated with powers something like those of the medieval 
craft guilds and would include in its membership all the lawyers of 
the State. This corporation would have the authority to determine 
the qualifications requisite to practice in the State, and to administer 
examinations for admission to the bar. It would have further power 
to disbar its members and to discipline them by reproval or by sus- 

61 See Proceedings Texas Bar Association, XLV, 171 (1926), and ibid., 
XLIII, 30 (1924). 


128 


GOVERNMENT OF TEXAS 


pension from practice. 62 The adoption of such a plan has been ad¬ 
vocated in Texas from time to time. 

In conclusion, it may be said that some of the proposals for 
legal reform and reconstruction may be rather visionary and some¬ 
what impractical, but their proponents earnestly support their 
ideas and cite the experiences of other jurisdictions with similar 
arrangements. Nevertheless, it may be accepted as an axiom that 
piecemeal and partial reform will be about as valueless as none. 
An ideal organization or machine will not function without an 
expert personnel to manipulate the controls. Neither can expert 
operators manage a perfect machine hampered by a set of obstruc¬ 
tive and archaic rules of procedure. To be effective any change 
should readjust the entire system. One minor adjustment requires 
some compensatory loosening or tightening in a different part of 
the mechanism, and on and on forever. What is needed is com¬ 
prehensive reconstruction, thorough procedural reform, and a gen¬ 
eral improvement of personnel. 

REFERENCES 

A satisfactory discussion of the organization and work of state courts 
from a general viewpoint is to be found in C. P. Patterson, American 
Government, rev. ed., Chs. XXXIX and XL (1933). Discussions of a 
general nature may be found in other texts on American government 
and the various works on state government. See also Judd and Hall, 
The Texas Constitution, Chs. VIII, IX. A plan for the reorganization 
and reform of the Texas judicial system is presented by S. B. Dabney, 
“Judicial Reconstruction,” Texas Law Review, VI, 302-326 (1928). 
In each number of the Texas Law Review a department, edited by 
A. H. McKnight, is devoted to suggestions for judicial reform. This 
review frequently contains articles on questions of judicial organization 
and procedure by professors and practitioners of the law. The Proceed¬ 
ings of the conventions of the Texas Bar Association carry stenographic 
reports of the debates on moot questions of judicial reform. The Journal 
of the American Judicature Society contains articles by the outstanding 
authorities on the administration of justice and also carries news of the 
movement for judicial reconstruction. The Reports of the American Bar 
Association and the publications of other legal organizations may also be 
examined with profit. The four annual reports of the Advisory Civil 
Judicial Council contain valuable judicial statistics and drafts of bills 
proposed for adoption. Part 4 of The Government of the State of Texas 
discusses the judiciary and the law officers and presents a proposed plan 
of judicial organization and administration. 

62 “Redeeming a Profession,” Journal of American Judicature Society, II, 
105-124 (1918) ; “Sanitation of the Bar,” ibid., IV, 5-14 (1920). 


CHAPTER IX 

PARTIES, SUFFRAGE, AND ELECTIONS 

PARTIES AND PARTY ISSUES 

In the Republic of Texas there were no organized political 
parties in the sense in which the term is understood today. Con¬ 
ditions were essentially those of a pioneer community, and the in¬ 
habitants had been unified only by their struggle for independence 
from Mexico. Political issues under such conditions naturally cen¬ 
tered around military personalities. As the people were almost 
unanimous in their desire for annexation, this was not a party issue 
within the Republic as it was in the United States. 

After annexation the political discussions in the State continued 
to be local in character, centering around the boundary dispute, 
the frontier problem, and the State debt; and until after the com¬ 
promise of 1850, which settled the first and last, national issues 
were of secondary importance. 

The question of the boundary, however, gradually became in¬ 
separably connected with the slavery controversy then going on in 
the United States. The early Anglo-American colonists had brought 
slaves with them, and Texas entered the Union as a slave state. It 
was only natural that in the course of pre-war national politics the 
Texans were determined to protect this institution. 

The Whig party hardly secured a foothold in Texas and was 
never able to challenge Democratic control of State offices. On the 
other hand, the rapid rise of the American or Know-Nothing party 
resulted in a strengthening of the embryonic Democratic organi¬ 
zation. Thus it was inevitable that in i860 Texas should find her¬ 
self in the Confederacy group. 

During the Civil War and Reconstruction, political life was 
very abnormal, and it was not until 1873 that the citizens of Texas 
again assumed control of public affairs. Slavery as an issue was 
dead and the Indian question was receding, but the enfranchise¬ 
ment of the former slaves introduced into politics a new element, 
and strengthened the hold of the Democratic party on the State. 

129 


130 


GOVERNMENT OF TEXAS 


The Republican party, headed by former Governor Davis, gath¬ 
ered these enfranchised Negroes into its fold, but even with this 
added strength it continued to be a minority party, having little 
influence on the course of politics. 

Since the record of the Republican party precluded the possi¬ 
bility of using it to further the discontented agrarian interests, 
the period of 1878- 190a witnessed the rise in succession of numer¬ 
ous minor parties; they failed, however, to secure any firm foot¬ 
hold and soon disintegrated. 1 

Since the turn of the century a significant change has taken 
place. Spectacular leaders have largely passed from the political 
stage, few vitally important issues have been submitted to the 
people, and the eligible voters have participated only in the Demo¬ 
cratic primaries for nominations to State offices. Factions within 
the Democratic party have developed, but few have been important 
in so far as significant political consequences are concerned. 2 

DEVELOPMENT OF NOMINATING METHODS 

During the formative period of party organization, nomination 
for local offices was secured by personal declaration or self- 
announcement, by the informal caucus, or by the action of the 
town or county mass meeting. These same informal nominat¬ 
ing methods were used for district and State offices. Later the 
mixed or mongrel convention, composed of members of the 
Legislature and citizens from different parts of the State, was 
introduced. 3 

By 1856 permanent party organization had been effected, and 
the Democratic State convention of that year had delegates pres¬ 
ent from fifty-four counties; by allowing members of the Legis¬ 
lature to represent thirty-seven counties without delegates, only 
eight counties in the State were unrepresented at this party con¬ 
clave. Two years later, however, members of the Legislature were 
refused admittance, and the pure delegate convention became per¬ 
manently established as a method of nomination. In the previous 

1 R. C. Martin, The People’s Party in Texas, University of Texas Bulletin, 
No. 3308 (1933) ; “The Grange As a Political Factor in Texas,” South¬ 
western Political and Social Science Quarterly, VI, 363-384 (1926) ; “The 
Greenback Party in Texas,” Southwestern Historical Quarterly, XXX, 161- 

177 (1927). 

^The Texas Weekly gives a brief account of candidates and issues in the 
primaries, from 1906-1930, I, 6-9, 12 (July 26, 1930). 

3 E. W. Winkler, Platforms of Political Parties in Texas, University of 
Texas Bulletin, No. 53, 18 (1916). 


131 


PARTIES, SUFFRAGE, AND ELECTIONS 

year the two-thirds rule had been adopted for nominations; it con¬ 
tinued in force until 1894. 4 Thus a system of representative party 
government developed and, until the direct primary was introduced, 
nominations continued to be made by convention except where the 
“Crawford County System” was introduced by party rule for local 
nominations and for the instruction of delegates to the conven¬ 
tion. 5 

Owing to the fact that the convention system seemed to lend 
itself to manipulation by individuals who were in politics for purely 
selfish reasons, public opinion began to favor some form of regu¬ 
lation. Beginning in 1895 each Legislature has given some atten¬ 
tion to the regulation of the methods by which political parties 
nominate their candidates for office. The most elaborate and com¬ 
prehensive statute is the primary law of 1905. It was very drastic 
and sweeping in both scope and effect, since it made the direct 
primary mandatory for nominations to State, district, and county 
officers in the case of all parties “that cast 100,000 votes or more 
in the last general election.” 6 This act regulated primary elections 
and suffrage in great detail and was a radical departure from pre¬ 
vious attempts to regulate the nominating procedure of political 
parties. 

Each succeeding Legislature has endeavored to strengthen the 
law in one or more respects. 7 The present party pledge was adopted 
in 1907. In the same year a statute was enacted which further 
strengthened the provision against political activities of corpora¬ 
tions and was an attempt to curb the liquor interest within the 
State. In 1913 a law provided for the nomination of presidential 
electors and delegates to the national convention by means of a 
preferential presidential primary. This law, however, was declared 
unconstitutional by the State Supreme Court because it provided 
for the holding of the election at public expense, and the court did 
not think that such elections were for a public purpose. 8 Majority 
rule for nominations was required for all State and district offices 
by act of 1918. This provision was very similar to the require¬ 
ment already in force regarding the nomination of United States 
Senators, providing that if no candidate received such a majority 

4 Ibid., 40-41, 338. 

5 Dallas Morning News, November 20, 1922. 

e General and Special Laws, 29th Leg., 1st called sess., ch. 11 (1905). 

7 General and Special Laws, 30th, 33d, 35th, 38th, and 40th Legislatures, 
regular and called sessions (1907-1927). 

8 Waples v. Marrast, 184 S. W. 180 (1916). 


132 


GOVERNMENT OF TEXAS 


in the first primary, a second was to be held for the two highest 
contestants in the first. 


SUFFRAGE 

The Constitution and laws prescribe the qualifications for an 
elector in the State as follows: age of twenty-one years, citizenship 
of the United States, residence in the State for one year next pre¬ 
ceding an election and for the last six months in the county in 
which he offers to vote, and payment of a poll tax (State and 
county) if subject thereto, prior to February i, preceding the 
election, or possession of an exemption certificate, if exempt, and 
one is required. Those disqualified from voting include: persons 
under twenty-one years of age, idiots and lunatics, paupers sup¬ 
ported by any county, persons convicted of any felony, and sol¬ 
diers, marines, and seamen employed in the service of the army or 
navy of the United States. 9 

Women were permitted to vote in the primaries by an enactment 
of 1918, even though they had not yet been given suffrage by the 
nineteenth amendment to the Federal Constitution or by the State 
Constitution. The law was upheld in Koy v. Schneider on the 
grounds that the suffrage qualifications in the Texas Constitution 
applied only to general elections and not to the primaries. 10 Of ex¬ 
ceptional interest was the attempt legally to bar the Negro by the 
“White Primary” law of 1923; this was declared unconstitutional 
by the Supreme Court of the United States in 1927. 11 Subsequently 
the invalidated statute was replaced by one which allowed the State 
executive committee to prescribe the qualifications of its own mem¬ 
bers ; this was also declared unconstitutional by the same court as a 
device for barring Negroes from party primaries. 12 The Democratic 
State convention of May, 1932, although a presidential convention, 
passed a resolution to apply to the 1932 primaries, similar to that 
passed by the State executive committee. Suit was brought by the 
Bexar County Negro voters league against the Bexar County ex¬ 
ecutive committee testing this resolution, and after much litigation 
the case finally reached the Supreme Court of Texas, but was 
thrown out on a technicality, leaving the question of the right of 
the Negroes to vote in the primary still unsettled. 13 It has been 

9 Constitution, Art. VI. 

10 221 S. W. 880 (1920). 

11 Nixon v. Herndon, 273 U. S. 536 (1927). 

12 Nixon v. Condon, 52 S. Ct. 485 (1932). 

18 53 S. W. (2d) 123 (1932). 


133 


PARTIES, SUFFRAGE, AND ELECTIONS 

assumed by party leaders, however, that the State convention has 
“inherent” power to bar Negroes from the party primaries. Regard¬ 
less of the final solution, there are other well-known and more 
practical methods of barring Negro participation in the primaries, 
such as white men’s unions. The fear of Negro participation is not, 
however, primarily based on race prejudice, but is rather the fear of 
white machine domination of the Negro balance of power. The 
problem of the Negro in Texas politics has never been and can not 
now be dealt with on the basis of abstract considerations; rather 
must the particular circumstances of white politics concerning the 
Negro be the basis for any intelligent analysis of the “white 
primary.” 14 


OPERATION OF ELECTION LAWS 

Since, in a one-party state, nomination in a primary of the 
dominant party ordinarily is equivalent to election, the general 
election for state and local offices is a mere formality. This is true 
in Texas, although the general election has gained somewhat in 
importance since 1924. Our discussion of the election laws will 
deal principally with the regulation of primary elections. 

Classification of Parties .—By the primary law political parties 
are divided into different classes, and are regulated according to 
their classification. 15 Parties which cast 100,000 or more votes in 
the preceding general election must nominate candidates for all 
offices, including party executive officers, by primary elections. A 
choice of nomination by primary and nomination by convention is 
given to those parties which polled as many as 10,000 and less than 
100,000 votes for Governor in the preceding general election, but 
in either case “the State Committee of all such parties shall meet 
... on the Second Tuesday in May, and shall decide, and by 
resolution declare, whether they will nominate State, district and 
county officers by convention or primary elections, and shall cer¬ 
tify their decisions to the Secretary of State.” 16 A third class of 

14 For a discussion of the Mexican in Texas politics, see O. D. Weeks, 
“The Texas-Mexican and the Politics of South Texas,” American Political 
Science Review, XXIV, 606-627 (1930) and “The League of United Latin- 
American Citizens: A Texas-Mexican Civic Organization,” Southwestern 
Political and Social Science Quarterly, X, 257-278 (1929). 

15 The following summary of election laws and practice is. taken, unless 
otherwise indicated, from Texas Election Laws With Annotations, published 
by the Attorney-General’s Department in 1928. 

18 The Democratic party regularly holds primary elections. The Republican 
party has held primary elections twice, in 1926 and in 1930, occasioned by 
the polling of over 100,000 votes by their nominee for Governor in the general 


134 


GOVERNMENT OF TEXAS 


parties, those having no State organization, is provided for in the 
primary law. Such parties may make nominations for local offices 
either by primary election or by county convention; this, however, 
must be done on the regular primary election day. Certification of 
such nominations must be made to the county clerk and will be 
placed on the printed official ballot after the receipt of a written 
application “signed and sworn to by three per cent of the entire 
vote cast in such county at the last general election.” 

Provision is also made for non-partisan and independent candi¬ 
dates, whose names may be placed on the general election ballot 
by a written petition mailed to the Secretary of State within thirty 
days after the primary election and accompanied by the written 
consent of the candidate. Similar procedure may also be used for 
the nomination of municipal officers. 

Electoral Machinery .—On the fourth Saturday in July in even- 
numbered years the first primary is held for nomination to State, 
district, and county offices. Since an absolute majority of the 
total vote cast for an office is required to secure the nomination 
for a State or district office, a second primary is often necessary. 
In this event it must be held on the fourth Saturday in August with 
only the two highest contestants of the first primary as candidates 
for a given office. Nomination for a county office may be secured 
on a mere plurality unless the county executive committee decides 
in favor of the majority rule and provides for a run-off election. 

With regard to the actual voting, the law provides that the pri¬ 
maries of no two political parties may be held within less than one 
hundred yards of each other. The requirements for general suf¬ 
frage apply to the primary elections with the addition of a uni¬ 
form primary test fixed by statute and such other membership 
qualifications as the State executive committee may prescribe. 17 

elections of 1924 (294,970) and 1928 (120,504). In other years the Republi¬ 
can executive committee has decided to nominate the party candidates by 
convention. Only 9,792 votes were cast in the Republican primary of 1930 
for candidates for Governor. (Texas Almanac, 1931, 240, 259.) In the general 
election of 1932 the Republican candidate for Governor polled 317,807 out 
of a total of 859,575 votes. 

A record vote of 973,041 was cast in the first Democratic primary of 1932 
for the Lieutenant-Governor, who was unopposed. The total vote for Gover¬ 
nor in the same primary was 967,928, and in the second primary, 949,773 
(approximate). (Texas Weekly, VIII, 1 (Aug. 13, 1932), 4 (Sept. 3, 1932).) 

With a population of 5,824,715 in 1930, Texas had an estimated qualified 
electorate of 1,199.931 in 1932. Slightly over 37 per cent of those eligible 
actually qualified. (Dallas Morning News, April 3, 1932.) 

17 The test required for participation in all primary elections today reads: 



PARTIES, SUFFRAGE, AND ELECTIONS 


135 


In recent years the practice of bolting a part of the regular ticket 
has been a cause of much concern to party leaders. In the 1924 
election the Republican nominee for Governor received a total 
vote far in excess of the normal Republican strength in the State 
and doubtless prepared the way for the successful 1928 bolt in the 
presidential election which resulted in much litigation. Undoubt¬ 
edly much of the controversy was due to the incompleteness and 
ambiguity of the election laws, necessitating endless court deci¬ 
sions interpreting the meaning of the statutes. In brief it may be 
said that the courts have interpreted the membership test as being 
more restrictive upon candidates for public office and party offi¬ 
cials than upon the voter. 18 

The chairman of the county executive committee of the party 
with the approval of a majority of the committee must appoint 
for each precinct a presiding officer of elections. This officer must 
select an associate judge and two or four clerks to aid him in hold¬ 
ing the election. Two election supervisors may be appointed by any 
one-fourth of the candidates to be voted on in the primary. All 
election officials must take an oath to discharge their respective 
duties faithfully. 

The primary vote is taken by official ballot which must be printed 
on white paper in black ink and contain nothing but the “test” and 
the name of the party at the head of the ticket. The names and 
residences of the candidates are printed beneath the title of the 
office being sought. The position and order of the names of the 
candidates are determined by lot by the county executive commit¬ 
tee. The procedure for voting in the primaries is very similar to 
that in the general election. The voter upon requesting a ballot 
gives his name to one of the clerks, who must then find it on the 
poll list and signify that fact to the judges of the election, giving 
at the same time the number of the voter. 19 A ballot, which previ- 


“I am a- (inserting name of political party or organization of which the 

voter is a member) and pledge myself to support the nominee of this 
primary.” 

18 See Cunningham v. McDermett, 277 S. W. 218 (1925) ; Briscoe v. Boyle, 
286 S. W. 276 (1926) ; Gilmore v. Waples, 188 S. W. 1037 (1916); Love v. 
Buckner, 49 S. W. (2d) 425 (1932) ; Scurry v. Nicholson, 9 S. W. (2d) 747 
(1928) ; Westerman v. Mims, 227 S. W. 180 (19 21 ) J Love v. Taylor, 8 S. W. 
(2d) 795 (1928) ; Love v. Wilcox, 28 S. W. (2d) 515 (1930). 

10 Voters are numbered consecutively. If the voter is in a city of ten thou¬ 
sand inhabitants or more, he must present his poll tax receipt or exemption 
certificate or take an affidavit that he has secured one or the other; otherwise, 
his name appearing on the poll list is sufficient proof of his eligibility to vote. 



136 


GOVERNMENT OF TEXAS 


ously has been endorsed on its back with the judge’s signature, is 
then handed to the voter by the presiding judge, and the clerk in 
charge of the poll list must then stamp or write opposite the voter’s 
name on this list the words “Primary—Voted” and the date of 
the primary election. The ballot is then marked by the voter in a 
private booth provided for that purpose. The voter marks out all 
names for which he does not desire to vote. Ballots may be counted 
simultaneously with the voting. Absentee voting is permitted. 

Party Committees .—By law the committees of political parties 
are made responsible for providing for and holding all primary 
elections, as well as for making canvasses of the returns. As has 
already been indicated, the county executive committee selects the 
election officials. It is the duty of this committee to make all other 
preliminary arrangements for the holding of the primary election, 
which it usually does through a sub-committee, particularly in the 
provision of the official ballot and other election supplies, includ¬ 
ing poll lists furnished the committee.by the county tax collector, 
and distributed to the election officials of the various precincts at 
least twenty-four hours before the time for the opening of the 
polls. The county committee is composed of the chairman, who is 
elected at the preceding primary from the county at large, and the 
precinct chairman selected by the party voters of each precinct in 
the county. Aspirants to the nomination for county or local offices 
may have their names placed on the official primary ballot by filing 
a personal request, or upon petition by any twenty-five qualified 
voters, with the county chairman on or before the Saturday pre¬ 
ceding the third Monday in June, provided that, if the latter 
method is used, the candidate endorses the petition showing his 
willingness to run in the primary. Moreover, the names of all 
State and district candidates are certified to the county committee 
by the State executive committee and the district chairman for 
printing on the official ballot. On the third Monday in June pre¬ 
ceding the primary, the county committees meet at the county 
seats and determine by lot the order of names on the ballot. The 
chairman usually appoints a sub-committee of five, with himself 
as ex officio chairman, to meet on the fourth Monday in June to 
make up the primary ballot. The expense of the primary is borne 
by the candidates, and until the candidate has paid his pro rata 
share of the expenses as determined by the county executive com¬ 
mittee, his name will not be placed upon the ballot . 20 On the day 

20 District candidates are assessed only $1.00 by each county executive com- 


PARTIES, SUFFRAGE, AND ELECTIONS 137 

following the primary election, the county executive committee is 
called by its chairman to canvass the returns. The chairman cer¬ 
tifies to the county clerk and announces the results of the election 
for county and precinct offices. He also certifies the results for dis¬ 
trict and State offices to the chairman of the State executive 
committee . 21 

The district executive committee is composed of the chairmen 
of the county executive committees of all counties of which the dis¬ 
trict is composed. The committee selects its own chairman. The 
district chairman receives individual announcements or petitions 
signed by twenty-five qualified voters for any district office on or 
before the first Monday in June, and it is his duty immediately to 
certify all such candidates for district offices to the county chair¬ 
men of his district. 

The State executive committee is elected by the State conven¬ 
tion in August of every even-numbered year. It consists of thirty- 
one members and a chairman; the chairman is elected at large, 
while one member of the committee is nominated by the delegates 
from each senatorial district and formally elected by the conven¬ 
tion. The State committee meets on the second Monday in June, 
decides where the State convention will be held, which is also, by 
law, the place of the third meeting of the State executive commit¬ 
tee, and finally passes upon the requests of candidates who are en¬ 
titled to have their names printed on the official primary ballot and 
makes certification to the chairmen of the county executive com¬ 
mittees. The State committee at this time also collects $100 from 
all candidates for state-wide offices, to help meet the primary elec¬ 
tion expenses. Not later than the second Saturday following the 
day of the first primary election the committee meets at the seat 
of government and receives and canvasses the returns from the 
general primary election for State and district offices and an¬ 
nounces the results . 22 In any case where no majority has been re¬ 
ceived the State executive committee certifies the two highest 
candidates for each office to the chairmen of the county executive 
committees so that their names may be placed on the official ballot 

mittee in the district, so that the candidates for precinct and county offices 
bear the brunt of the expense. 

21 A law enacted by the Forty-third Legislature changes the method of 
making returns of elections, so as to make them available more quickly. Un¬ 
official returns are provided for. General Laws, 43d Leg., reg. sess., 762-766 



138 


GOVERNMENT OF TEXAS 


for the run-off primary. On the second Monday after the fourth 
Saturday in August, the State committee meets at the place already 
decided upon for the meeting of the State convention, and opens 
and canvasses the returns of the second primary election, which 
are then certified to the State convention. The chairman and the 
secretary of the convention must then certify these names to the 
Secretary of State in order to place the names on the general elec¬ 
tion ballot . 23 By October the Secretary of State must certify to 
the clerks of the various counties of the State, the nominations for 
district and State offices, respectively; and the county clerks, after 
publishing these names for ten days, shall have the names of the 
party nominees printed in the proper party column on the official 
ballot. 

Party Conventions .—Not only is the party executive organiza¬ 
tion extensively regulated by statute, as the above sketch indicates, 
but the convention system is also required by law as an adjunct to 
the operation of the mandatory direct primary. The voters of each 
precinct, in convention or as prescribed by the county executive 
committee, on primary election day are required to select dele¬ 
gates to a county convention. Each precinct in the county is al¬ 
lowed one delegate for each twenty-five votes cast therein for the 
party’s candidate for Governor at the last preceding election . 24 
The county conventions meet on the first Saturday after the gen¬ 
eral primary election and select one delegate to the State conven¬ 
tion “for each three hundred votes, or major fraction thereof, 
cast for the party’s candidate for Governor in such county at the 
last preceding general election. ...” A canvass for all State of¬ 
fices must be made by the State convention, which by law meets 
on the Tuesday after the third Monday after the fourth Saturday 
in August . 25 In addition to this, other functions of the State con- 

23 Original jurisdiction has been given to the Courts of Civil Appeals or 
the Supreme Court to issue a mandamus to compel party officials to perform 
a statutory duty when delay would be injurious. General Laws of Texas, 41st 
Leg., 4th and 5th called sessions, ch. 4 (1930) ; Love v. Wilcox, 28 S. W. (2d) 
515 (1930) ; Austin American, September 8 , 1932. 

24 Delegates to the county convention are frequently elected by the voters 
of a precinct in the direct primary election. 

25 Returns of the general election for Governor and Lieutenant-Governor 
are sent to the Secretary of State and are canvassed by a j oint session of both 
houses of the Legislature. Returns for other State officers are canvassed by 
the Secretary of State in the presence of the Governor and Attorney-General, 
or either of them, on the fifteenth day following the election. General Laws, 
43d Leg., reg. sess., 764 ( 1933 ) - 


139 


PARTIES, SUFFRAGE, AND ELECTIONS 

vention are the adoption of the party platform, and the election of 
a new State executive committee. 

The problem of selecting delegates to the national convention 
was temporarily solved in 1913 by the enactment of a presidential 
preferential primary law, but in 1916 this statute was declared 
unconstitutional by the State Supreme Court because it provided 
for the payment of the expenses of a party primary by the public. 
Owing to this fact, a set of conventions separate and distinct from 
those described above are called into operation every four years. 
Thus the party voters of each precinct meet on the first Saturday 
of May in presidential election years to elect and instruct dele¬ 
gates to a county convention, which in turn elects and instructs 
delegates on the first Tuesday after the first Saturday in May, to 
the State convention. On the fourth Tuesday in May these dele¬ 
gates assemble at the State convention for the purpose of selecting 
and instructing delegates to the national convention. The basis of 
representation in the precinct, county, and State conventions held 
under this article is not fixed by law. It is ordinarily based upon 
the number of votes of the party for presidential electors at the 
preceding general election, and the percentage apportioned through 
the State, county, and precinct conventions. 

Campaign Machinery and Funds .—Candidates for State and 
district nominations may designate in writing to the Secretary of 
State the appointment of a campaign manager, while the same may 
be accomplished for local or county candidates by written notice 
to the county clerk of the candidate’s county. Assistant managers 
may also be designated by candidates for either district or State 
nomination, or by their legally appointed campaign managers, by 
filing a written notice of appointment with the clerk of the county 
in which appointment is being made. Vacancies may be filled and 
removals made in the same manner as the offices were filled in the 
first instances. Moreover, after the campaign machinery as per¬ 
mitted by law has been organized, the candidate is responsible for 
the receipts and disbursements made by himself or his manager, 
and limitations, both as to purpose and amount, are set by law. 

None but the candidate or his campaign manager may legally 
receive contributions to his campaign fund; contributions from 
corporations are prohibited. A citizen may raise “voluntarily” a 
sum not to exceed fifty dollars to defray the expenses of a political 
meeting, provided a sworn statement of all receipts and disburse¬ 
ments is filed with the county clerk of the county in which the 


140 


GOVERNMENT OF TEXAS 


meeting is held within twenty-four hours. Any person may make 
bona fide contributions of his own personal services and of per¬ 
sonal traveling expenses, “including hotel bills while traveling, to 
the support of any candidacy.” Expenditure may also be made in 
the interest of a candidate “for postage or telegraph or telephone 
tolls, or for cost of any correspondence of any lawful purpose out 
of his own funds” of an amount not to exceed ten dollars. 

Limitations are set by law as to the maximum amount which 
candidates and their campaign managers may spend in a cam¬ 
paign. 26 Four-fifths of the sums thus designated by statute may be 
used in the campaign preceding the first primary, and the other 
one-fifth for the campaign preceding the run-off election, with, 
however, a legal maximum of expenditure in a single county. In 
the interest of a candidacy one may expend an amount equal to 
ten dollars per hundred voters in any one county, with the added 
proviso that the total shall not exceed the legal maximum. 

Except as noted above, only a candidate or his campaign man¬ 
ager or a legally appointed agent may expend money in the inter¬ 
est of the campaign. Furthermore, the candidate and his campaign 
manager must keep a careful record of all receipts and expendi¬ 
tures, and the latter must fall within the purposes specified by stat¬ 
ute. 27 Sworn statements as to the receipts and expenditures of the 
campaign must be made not more than thirty nor less than twenty- 
five days before the primary election, and again not more than ten 
nor less than eight days prior to the primary, and a third not more 
than ten days after such election. 

Any violation of the law relating to campaign contributions and 
expenditures carries severe penalties in the penal code, consisting 
of a fine of $1,000 or a year in jail, or both, or confinement from one 
to five years in the State penitentiary. Moreover, any candidate who 
knowingly violates these provisions forfeits his right to have his 
name go on the ballot, in either the primary or the general election. 
Proceedings by quo warranto may be instituted in the district court 
of any county to determine whether or not a candidate has so vio¬ 
lated this statute. 28 

26 $10,000 for Governor and United States Senator; $2,500 for Congress¬ 
men, officers elected by voters of entire State, and Judges of the Courts of 
Last Resort; $1,000 for State Senators; $300 for State Representatives. 

27 Traveling expenses, fees, stenographic and clerical work, telegraph, tele¬ 
phone, printing, advertising, expenses for public meetings. 

28 Quo warranto proceedings must be brought by the county or district at¬ 
torney or by the Attorney-General. See Staples v. State, 244 S. W. 639 


141 


PARTIES, SUFFRAGE, AND ELECTIONS 

Primary Election Contests. —In spite of the fact that procedure 
for contested nominations has been outlined in the statutes, it has 
been necessary for the courts in numerous instances to interpret 
the law involving the procedure in such contests. 29 In case of a 
contested election, proceedings must be instituted within five days 
after the lists of nominees are published by the county clerks, or 
the nominations as previously certified are considered valid, and 
are not subject to question. If a nomination is contested, the case 
may be taken either to the appropriate executive committee of the 
party or to a district court. If the former method is followed, pro¬ 
ceedings must be instituted within five days after the results of 
the primary are declared by the committee or convention, but if 
the contest is begun in the district court, ten days (after the cer¬ 
tificate of nomination is issued by the proper authority) are allowed 
for filing the necessary papers. However, appeal from a commit¬ 
tee’s decision may be taken by either party to the district court. In 
case of a contest over a nomination to a State office, unless other¬ 
wise agreed upon by the parties to the suit, it must be heard either 
originally or upon appeal by the district court at Austin, but in 
other contests the district court of the county of the contestee’s 
residence may take jurisdiction, or it may be heard by the district 
court of the county in which the alleged fraud or irregularity oc¬ 
curred. Both the courts and the proper party committees have 
access to the election returns, if it is necessary to examine such 
returns in deciding a contest. Except in contests involving a nomi¬ 
nation for a State office, the decision of the district court is final, 
but in the case of contest of a State office, appeal may be made to 
the Court of Civil Appeals. 30 

(1922) ; State v. Meharg, 287 S. W. 670 (1926) ; Yett v. Cook, 281 S. W. 
837 (1926). For a summary of the Peddy v. Mayfield controversy of 1922 
see The Southwestern Political Science Quarterly, III, 225-231 (1922). 

29 See Hammond v. Ashe, 131 S. W. 539 (1910) ; Land v. McLemore, 169 

S. W. 1073 (1914) ; Pollard v. Speer, 207 S. W. 620 (1918) ; Kinnard v. Lee, 
244 S. W. 1046 (1922) ; Gettys v. Cobble, 244 S. W. 860 (1922) ; Bickley v. 
Lands, 228 S. W. 514 (1926) ; Seale v. McCallum, 287 S. W. 45 (1927) ; 
Hamilton v. Monroe, 287 S. W. 304 (1927) ; Elliot v. Williams, 9 S. W. 
(2d) 483 (1928) ; Couch v. Hill, 10 S. W. (2d) 170 (1928) ; Thomason v. 
Seale, 53 S. W. (2d) 764 (1932). . . 

30 For interpretations of the statutes on primary election contests see 
Sterling v. Ferguson, 53 S. W. (2d) 753 (1932) ; Ferguson v. McCallum, 53 
S. W. (2d) 768 (1932). 



142 


GOVERNMENT OF TEXAS 


APPRAISAL OF THE PRIMARY SYSTEM 

Any detailed and careful study of the primary election laws 
brings to light certain glaring defects. 31 They have been the result 
of a gradual process of formation with very little thought being 
given to the preparation of any comprehensive code. From the fact 
that there has generally been a strong minority in the Legislature 
who have favored a loose regulation, particularly of the nominating 
procedure of political parties, a conglomerate mass of statutes has 
resulted. Being so loosely connected, the form and texture of the 
law is very poor; many omissions, ambiguous wording, and an 
overlapping of different sections result either in direct conflicts 
or in a lack of clearness. This has been most perplexing and con¬ 
fusing to both the voter and the candidate. 

Moreover, the code should be extended in certain regards. For 
example, since it is the duty of the judiciary to interpret and apply 
the law impartially, non-partisan ballots should be provided for 
judicial officers. The same would apply also to educational admin¬ 
istrators, who are supposed to be technical experts. 

Furthermore, there are certain places where the present provi¬ 
sions are greatly in need of strengthening. Nomination by petition 
signed by a substantial percentage of party voters would help to 
keep “joker” candidates from the ticket. Moreover, where only one 
party candidate files for the nomination to an office, the chairman 
of the party committee in charge should certify him as the party 
nominee without the further necessity of printing the names of 
such single candidates upon the ballot. The practice of allowing 
the writing in of names for precinct chairman gives the “machine” 
an opportunity to control these offices more easily. It has been sug¬ 
gested that nomination by convention would be a better plan for 
such party offices. 32 The printing of the names on the ballot accord¬ 
ing to lot is a very poor and unfair method in contrast with the 
principle of rotation. Owing to sectional prejudice within the State, 
the printing of the addresses of the candidates makes for preju¬ 
diced voting, and adds to the cost of the ballot as well. 

The law is also inadequate in defining and preventing fraud and 
corrupt practices. Because expenditures are limited to lump-sum 
maximums, padding is often resorted to, owing to the fact that 

3 * O. D. Weeks, “The Texas Direct Primary System,” Southwestern Social 
Science Quarterly, XIII, 95-120 (1932). 

32 Dallas Morning News, October 23, 1922. 


143 


PARTIES, SUFFRAGE, AND ELECTIONS 

the maximum is usually reached in the first primary. A better 
plan would be to set a maximum for each campaign. The regula¬ 
tions of contributions are very vague and ineffective in that small 
amounts are allowed without reporting, which also makes for 
padding of reports. Observance of regulations which are absolute 
in fact should be required of candidates and agents in all expendi¬ 
tures, whether large or small. 

Again, the operation of the double primary system often re¬ 
sults in minority choices, particularly in regard to the guberna¬ 
torial office and United States Senatorships. Other serious de¬ 
fects of the double primary system are the added expense of the 
second election, and the demands on the physical strength of the 
candidates in the making of two and sometimes three races. Pref¬ 
erential voting would remedy these two defects, inasmuch as it 
would eliminate the run-off primary while tending to insure the 
nomination of a “majority” candidate. Further, in the conduct of 
elections, and in the making and in the canvassing of returns, much 
improvement could be effected. All election material should be re¬ 
turned to the county canvassers immediately after elections. More¬ 
over, contending groups should be assured of an impartial canvass. 

The problem of securing a proper balance between the too rigidly 
closed primary and the open one, which is destructive of party 
responsibility, is a serious matter. The party pledge has generally 
proven to be unfair or inadequate as a means of political control, 
for it either violates the secrecy of the ballot or becomes a mere 
formality which can be disregarded as the voter sees fit. Bolting in 
a one-party state is perhaps an essential means of control for the 
voter, although it is usually of negative value. Since 1928, sporadic 
attempts to punish bolters and to purge the party of them have 
been of very little avail, owing to the fact that the courts have 
tended to curtail the party in exerting too much power over its 
members. 33 

Finally, without exhausting the list, the courts of the State 
should be relieved of the responsibility of making decisions in elec¬ 
tion controversies. It would seem that the need is for a new law; 
mere codification of existing statutes will not suffice. The best 
features of the present system should, of course, be retained, but 
the law should be extended so as to meet more adequately the de¬ 
mands of present conditions in the State. 

33 S. D. Myres, Jr., Party Bolting (Arnold Foundation Studies in Public 
Affairs, 1932). 


144 


GOVERNMENT OF TEXAS 


LEGAL STATUS OF POLITICAL PARTIES 

The status of political parties is clearly defined by the State 
Supreme Court in Waples v. Marrast. Z4: “A political party is noth¬ 
ing more or less than a body of men associated for the purpose of 
furnishing and maintaining the prevalence of certain political prin¬ 
ciples or beliefs in the public policies of government. . . . They 
perform no governmental function. They constitute no govern¬ 
mental agency. The purpose of their primary elections is merely to 
enable them to furnish their nominees as candidates for the popu¬ 
lar suffrage. In the interest of fair methods and a fair expression 
of their members of their preference in the selection of nominees, 
the State may regulate such elections by proper laws, as it has been 
done in our general primary law. . . But the court frankly 
states that “ to provide nominees of political parties for the people 
to vote upon in the general election, is not the business of the 
State.” This was perhaps the earliest decision setting forth the 
relation of the political party to the State. Since that time, how¬ 
ever, there have been numerous other decisions, based upon the 
ruling in this leading case, indicating that this is the current theory 
as to the nature of political parties in Texas. 35 

REFERENCES 

For a general discussion of political parties in state government, 
consult C. P. Patterson, American Government , rev. ed., Ch. XXXII 
(1933) and other standard texts on American government and state 
government. See also Judd and Hall, The Texas Constitution, Ch. X. 
There is no comprehensive account of the history and operation of 
political parties in the State. Mr. Winkler has collected the party plat¬ 
forms up to 1916. Professors Weeks and Martin have published scholarly 
studies of different phases of party regulation and development. The 
Texas Weekly (1930-1933) contains interesting comments on party con¬ 
tests and analyses of election results. Primary and general election 
statistics are given in the annual editions of the Texas Almanac. S. H. 
Acheson, Joe Bailey, the Last Democrat (Macmillan) is a noteworthy 
contribution to political biography. 

34 184 S. W. 180 (1916). 

35 Waples v. Gilmore, 188 S. W. 1037 (1916) ; Morris v. Mims, 224 S. W. 
587 (1920) ; Koy v. Schneider, 221 S. W. 880 (1920) ; Westerman v. Mims, 
227 S. W. 178 (1921) ; Cunningham v. McDermett, 277 S. W. 218 (1925) ; 
Scurry v. Nicholson, 9 S. W. (2d) 747 (1928) ; Love v. Wilcox, 28 S. W. 
(2d) 515 (1930) ; an excellent summary of this matter is also to be found 
in the dissenting opinion in Nixon v. Condon, 52 S. Ct. 485 (1932). 


CHAPTER X 

LOCAL GOVERNMENT 


A persistent spirit of localism has given a position of peculiar 
importance and responsibility to local government in the United 
States. This statement applies with undiminished vigor to Texas, 
where the feeling of community independence and self-sufficiency 
has obstinately resisted State intervention or supervision in local 
affairs. Fear and jealousy of external authority have been difficult 
to overcome. The legal fiction is maintained that, in governmental 
capacities, cities and counties are merely arms of the State. With 
the enforcement of State laws in the hands of officials politically 
responsible to local opinion, this doctrine of the law fails to har¬ 
monize with realities. Thus, at any rate in a negative fashion, 
there exists practical local autonomy which should serve as a 
foundation for community solidarity and civic accomplishment. 
The salutary results which might be expected under such circum¬ 
stances, however, do not always materialize. 

The advantageous position of local agencies for the perform¬ 
ance of many functions causes them to be entrusted with the 
greater portion of the taxpayer’s dollar. Most public works and 
social welfare projects are financed by counties, cities, or special 
districts. The citizen comes into contact with his city or county 
officials almost daily. These facts should make the subject of local 
government one of universal interest. The problem of local gov¬ 
ernment may be analyzed from the standpoint of powers, or¬ 
ganization, and relation of local government to State govern¬ 
ment. 1 A comprehensive study would also consider the problem 
of personnel. 


COUNTY GOVERNMENT 

Powers, Liabilities, and Functions .—“Counties are involuntary 
political divisions of the State, created by general laws to aid 

1 H. G. James, “Problems of Local Government,” Addresses at the Con¬ 
ference on Citizenship, Education, and Home Welfare, University of Texas 
Bulletin, No. 2211, 23 (1922). 

i 4 S 


146 


GOVERNMENT OF TEXAS 


in the administration of government. . . . They are purely aux¬ 
iliaries of the State; and to the general statutes of the State they 
owe their creation, and the statutes confer upon them all the 
powers they possess, prescribe all the duties they owe, and impose 
all liabilities to which they are subject.” 2 

Counties are ordinarily designated as quasi corporations. 3 While 
they “are municipal corporations in a restricted sense, they are 
involuntarily so, and sustain to the state a relationship which a 
town or city incorporated does not sustain. They are created to 
carry out a policy common to the whole state, and not mainly 
to advance the interest of the particular locality. . . .” 4 

Subject to constitutional restrictions which have become more 
numerous with each succeeding Constitution, the Legislature has 
the power to create counties, including the authority to grant 
powers to the county and to impose liabilities upon it. “Counties, 
being component parts of the state, have no powers or duties ex¬ 
cept those clearly set forth and defined in the Constitution and 
statutes.” 5 Such powers and duties are strictly interpreted. To 
establish claims against the county for damages arising from the 
exercise of its functions, it must be shown that liability has been 
imposed by statute, either expressed or implied. 6 Counties may 
be exempted by statute from liability in the performance of 
obviously private functions. 7 As a rule, however, no liability at¬ 
taches to negligence in the performance of county functions. 

Efforts to classify county functions as purely local or as of 
State importance accomplish little. 8 The services of the county may 
be more logically arranged with reference to its various primary 
functions. Briefly, they are as follows: (i) The county serves 
as an election district for local, district, and State officials. County 
officers perform duties connected with the electoral process such 
as fixing the limits of voting precincts, collecting poll taxes, and 
setting up the mechanism for operation on election day. (2) For 

2 Cummings v. Kendall County, 7 Tex. Civ. A. 167 (1894), quoting Dil¬ 
lon, vol. 1, sec. 25. 

8 City of Sherman v. Shobe, 94 Tex. 129 (1900). 

4 City of Galveston v. Posnainsky, 62 Tex. 127 (1884). 

5 Edwards County v. Jennings, 33 S. W. 585 (1895). 

* Heigel v. Wichita County, 84 Tex. 392 (1892); Florida v. Galveston 
County, 55 S. W. 540 (1900) ; Crause v. Harris County, 44 S. W. 616 (1898). 

7 In a recent act empowering cities and counties of a certain class to estab¬ 
lish air ports, liability for personal injuries was specifically disclaimed, re¬ 
gardless of the unsafe condition of such air port, or of negligence, or lack of 
skill in its management. 

8 W. F. Dodd, State Government, 2d ed., 401 (1928). 


LOCAL GOVERNMENT 


147 


judicial purposes, the county is the basic unit of the State. It is 
a part of or composes one or more civil judicial districts. The 
county court exercises jurisdiction over certain misdemeanors, 
comparatively minor civil causes, and probate matters. Within the 
county there are the justices of the peace. (3) In the maintenance 
of public order, the sheriff, his deputies, and the constables are the 
chief county functionaries. (4) The county is an area for the ad¬ 
ministration of financial matters of both local and State concern. 
The tax assessor, tax collector, and treasurer are fiscal officers 
for both county and State. (5) The county is a unit for the sur¬ 
veying of land and the recording of land deeds and like instru¬ 
ments. (6) Health matters are attended to by the county health 
officer. (7) Educational services are rendered by the county through 
schools and libraries. (8) Public welfare functions such as the 
establishment of poorhouses, granting of widows’ pensions, and 
the creation and maintenance of parks are performed by the county. 
(9) Public works and buildings including bridges, highways, court¬ 
houses, and jails are constructed to a large extent by the county 
and its smaller subdivisions. 

Governmental Organization of the County .—The general gov¬ 
erning body of the county is the commissioners’ court, composed 
of the county judge as presiding officer and four commissioners 
elected by the qualified voters from the four precincts into which 
the county is divided. 9 Commissioners must reside in the precinct 
which they represent, furnish a $3,000 bond, and take the oath of 
office. Vacancies are filled by the county judge, while removal from 
office may be effected by the district court for incompetency, official 
misconduct, or habitual drunkenness. 10 The regular term of the 
court lasts for one week or less beginning the second Monday of 
each month, and special sessions may be called by the county judge 
or three of the commissioners. 11 The county clerk is ex officio sec¬ 
retary and keeps the minutes of the commissioners’ court. The 
salary of the commissioners varies from $720 to $3,800 per annum, 
according to the assessed valuation of the property of the county. 12 

Appointment of numerous minor officials is one of the duties of 

9 As to qualifications for voters, see Ch. IX. 

10 County judges, county attorneys, clerks of the district and county courts, 
justices of the peace, constables, and other county officers may be similarly 
removed. 

11 The term “commissioners’ court” is really a misnomer, for its functions 
are almost entirely administrative and legislative. 

12 Laws, 43d Leg., reg. sess., 727-730 (1933) • 


148 


GOVERNMENT OF TEXAS 


the commissioners’ court. Among these officials are commissioners 
of appraisement of improvement districts, veterinarian, health offi¬ 
cer, drainage engineer, county librarian, juries of view to lay out 
county roads, county road superintendent, road patrolmen, road 
overseers, inspectors of sheep, and tax assessors and collectors for 
certain special districts. Vacancies in the office of county judge, 
county attorney, clerk of the county court, sheriff, county treas¬ 
urer, county hide inspector, assessor, collector of taxes, justices of 
the peace, constables, and county superintendent of public instruc¬ 
tion are filled by a majority vote of the court. 

Contracts are made for the county by the commissioners’ court 
with certain procedural limitations. Notice and competitive bids 
are required for expenditures of over $2,000. Contracts involving 
from $500 to $2,000 must be let through competitive bidding at a 
regular term of the court. 

Functions relating to public works and public buildings are per¬ 
formed by the commissioners’ court. Public roads are opened and 
discontinued by the court, and each commissioner is supervisor of 
roads in his precinct. Four road commissioners may be appointed 
by the court to have actual control of road construction and main¬ 
tenance, or each county commissioner may act as road commis¬ 
sioner for his precinct. As an alternative, each county may have 
one or more road superintendents to have direct supervision over 
its roads and highways. The commissioners’ court cooperates with 
the State Highway Department in the construction of designated 
State highways. Bridges are built and kept in repair under the su¬ 
pervision of the court, and it may regulate or actually operate fer¬ 
ries. Drains may be constructed by the court, and it also has the 
power of creating drainage districts. Commissioners’ courts of 
coastal counties may provide for sea walls and breakwaters, while 
certain counties may furnish air ports. Courthouses, jails, and 
other county buildings are erected and kept in repair by the com¬ 
missioners’ court. 

Public welfare functions are administered by the court. It ap¬ 
points the county health officer and may establish a county hospital 
and appoint its board of managers. Contracts may be made with 
private hospitals for the care of the sick of counties with no city 
of more than 10,000 population. A cooperative city-county hospi¬ 
tal may be provided for in counties having within their boundaries 
cities of more than 10,000 population. Mothers’ pensions may be 
granted by the court, and the care of paupers and sick indigents is 


LOCAL GOVERNMENT 


149 


under its control. Nurses may be employed to promote the public 
health by examining school children, etc. Boards of health for un¬ 
incorporated villages and towns in the county are appointed by the 
court. 

Free county libraries may be established and maintained by the 
commissioners’ court. Two or more counties may establish joint 
libraries or a county may avail itself of the services of an existing 
library. Incorporated cities may arrange for the use of the free 
county library by its citizens. On petition of ioo qualified voters, 
an election must be called on the question of establishing a farm¬ 
ers’ county library to furnish information on agricultural topics. 

County parks to the number of four with an area of not more 
than ioo acres each may be set up by the commissioners’ court. It 
may make improvements and regulate concessions in the parks. 
A levy of 5 cents on the $100 valuation may be made for park 
purposes. 

The commissioners’ court has numerous duties in connection 
with elections. It prescribes the boundaries of election precincts, 
selects election judges, pays election expenses, and canvasses the 
returns. It calls elections on questions regarding the creation of all 
kinds of special districts, special tax levies, and bond issues. 

Financial duties connected with the raising of revenues, the bor¬ 
rowing of money, and the control and disbursement of funds con¬ 
stitute probably the most important phase of the work of the 
county commissioners’ court. A general property tax of not over 
95 cents on the $100 valuation may be levied by the court. This is 
applied as follows: not to exceed 25 cents for general county pur¬ 
poses, 15 cents for the jury fund, 15 cents for roads and bridges, 
25 cents for public buildings, streets, sewers, waterworks, and 
other permanent improvements. With the approval of a majority 
vote of the property taxpayers an extra 15 cents may be levied for 
road purposes. The Legislature has authorized an additional 5 
cents for park purposes, the constitutionality of which is doubt¬ 
ful. Coast counties may make further levies for sea walls or break¬ 
waters with the consent of the voters. A twenty-five-cent poll tax 
and occupation taxes not exceeding one-half of the State occupa¬ 
tion taxes may be levied. To levy a county tax the court must be in 
regular session with all members in attendance. 

Bonds for sums less than $2,000 for repairing buildings or 
funding valid and outstanding obligations may be issued without 
an election, but an election must be held before the court may 


150 


GOVERNMENT OF TEXAS 


issue bonds for the erection of a courthouse and jail, for the con¬ 
struction of bridges, hospitals, homes for delinquent juveniles, or 
roads. After proper electoral procedure the various types of minor 
subdivisions of the county, such as water improvement or road 
districts, are authorized by the court to issue bonds. 

The commissioners’ court is a sort of clearing house for county 
finances. Its secretary, the county clerk, keeps a record for it of 
the financial condition of the county. The court receives a quar¬ 
terly report from all officials handling county funds. For example, 
the tax collector, the treasurer, and officers collecting fines must 
make reports to the court concerning their collection and disposi¬ 
tion of county funds. It acts as a board of equalization and ap¬ 
proves the rolls prepared by the tax collector. Later it corrects 
errors in tax administration, such as double renditions. 

The chief individual in the organization of the government of 
the county is the county judge, who is elected biennially. He is 
required “to be well-informed in the law of the State,” but very 
infrequently is. There is a fusion of State and local functions in 
the office of the county judge. In his capacity as judge of the 
county court, he is very clearly performing a State function, while 
his multifarious administrative duties are both State and local in 
nature. As a member of the commissioners’ court, he aids in the 
accomplishment of the duties of that body. Considerable routine 
connected with elections is cared for by the judge, such as posting 
the proclamation of the Governor calling general elections, order¬ 
ing county and precinct elections, providing election supplies aided 
by the sheriff and county clerk, receiving returns, and issuing cer¬ 
tificates of election to successful candidates. He makes returns of 
the elections for district, State, and federal officers to the Secretary 
of State. He calls elections for the incorporation of towns and vil¬ 
lages, the abolition of municipal corporations, the incorporation of 
school districts, the levy of school district taxes, the issuance of 
schoolhouse bonds, and stock-law elections. 

A multitude of petty offices are filled by appointment by the 
county judge, such as commissioners to assess damages for a rail¬ 
road right-of-way, committees of pilotage in very minor ports, 
matrons for courthouse rest rooms, probation officers, and road 
overseers in special instances. 

The county judge signs bonds issued by counties and some of 
the minor districts. He handles the sale of bonds for certain of 
these districts, and has notarial powers. He also may perform mar- 


LOCAL GOVERNMENT 


151 


riage ceremonies. In counties having less than 3,000 scholastic 
population the county judge is ex officio superintendent of public 
instruction unless the county has adopted by majority vote the 
proposition to employ a full-time superintendent. 13 

The county attorney is almost wholly a judicial officer of the 
State, but his election by the voters of the county causes his zeal 
in the performance of his State functions to be greatly tempered 
by local opinion. He must be a duly licensed attorney and furnish 
a bond in the sum of $2,500 payable to the Governor, conditioned 
that he will pay over all public moneys which may come into his 
hands. 

The county attorney represents the county in its civil suits, most 
of which are suits instituted for the collection of delinquent taxes. 
It is his duty upon the request of county or precinct officers to 
advise them regarding their official duties. He is charged with the 
duty of bringing suits against county or district officers entrusted 
with public funds to compel the performance of the legal duties of 
such officers and to preserve and protect the public interests. He 
must make an annual report to the county treasurer of the money 
received by him through his office during the year. With the con¬ 
sent of the commissioners’ court he may appoint not over three 
assistants. 

The sheriff is conservator of the peace, administrative official, 
and executive officer of the courts within the county. He is elected 
biennially and must furnish bonds in sums varying from $5,000 
to $30,000. His deputies are appointed with the consent of the 
commissioners’ court. His most common duties are as conservator 
of the peace in preventing crimes, breaking up mobs, and arrest¬ 
ing offenders. As executive officer of the various courts of his 
county, he keeps order in the court room and serves subpoenas, 
citations, and other processes. His administrative duties are rela¬ 
tively unimportant except in counties of less than 10,000 inhabit¬ 
ants, where he is ex officio tax collector. In all counties he delivers 
writs of election and election supplies, and serves with the county 
judge and clerk as a board to provide election supplies. He has 
control of the courthouse and jail of his county. The sheriff is 
paid fees for serving processes and usually an ex officio salary by 
the commissioners’ court. 

13 The county judges and commissioners have formed an organization styled 
“The County Judges’ and Commissioners’ Association of Texas,” which 
meets in annual convention to discuss county problems, and publishes an or¬ 
gan, County Progress. 


152 


GOVERNMENT OF TEXAS 


The clerk of the county court, commonly known as the county 
clerk, combines in his office functions of both a judicial and non¬ 
judicial nature. He attends the sessions of the county court, keeps 
its records, and files and indexes papers concerning pending cases. 
He is ex officio clerk of the commissioners’ court, and keeps its 
minutes, and has possession of its records, books, and papers. He 
keeps a finance ledger which contains an account with every offi¬ 
cer receiving county funds. A statement of the condition of these 
accounts is made to the commissioners’ court quarterly, and a 
county financial statement is prepared and published annually. 

Divers ministerial functions are performed by the county clerk. 
He is the recorder of instruments of writing, such as deeds, mort¬ 
gages, bonds for title, and contracts. He must see to the proper 
indexing of these records and is their custodian. While these are 
largely routine matters, their accurate and skillful performance is 
of prime importance. He issues marriage and hunting licenses. 
His compensation is derived from fees and an ex officio salary 
from the county treasury. 

In each county a tax assessor is elected biennially. He must give 
bond, take the required oath, and may appoint one or more depu¬ 
ties with the consent of the commissioners’ court. No especial 
qualifications are required to become assessor, although he must 
perform the technical function of evaluating the property of the 
county, with the result that the work of this office is generally un¬ 
scientifically done. 

Assessments are made between January i and April 30 of each 
year. From the second Monday in May to the first day of June, 
the commissioners’ court sits as a board of equalization, citing 
taxpayers to appear and show cause why their assessments should 
not be raised (or lowered, in exceedingly rare instances). When 
this work is completed, the tax rolls are prepared and delivered 
to the tax collector after approval by the commissioners’ court. 

The county tax assessor also makes the assessments for some of 
the numerous districts within the county. Cities may employ the 
county assessor to make the municipal assessments. The compen¬ 
sation of the assessor is based upon the valuation of properties 
assessed, the number of poll taxes assessed, with a certain per¬ 
centage of excess fees and additional sums for assessing taxes for 
cities and special districts. 

A county tax collector is elected biennially in counties having 
over 10,000 inhabitants. He takes the customary oath, must fur- 


LOCAL GOVERNMENT 


153 


nish bond, and may appoint deputies. He receives taxes shown to 
be due by the assessment roll furnished by the assessor, and makes 
a monthly report to the comptroller. This report must be approved 
by the county clerk, but such approval is usually granted perfunc¬ 
torily. Quarterly reports are made by the collector to the commis¬ 
sioners’ court. The tax collector ordinarily receives taxes for the 
special districts within the county. It is the duty of the collector to 
furnish lists of poll taxes and exemption certificates to election 
authorities. Compensation is on the basis of commissions on the 
amount collected, plus a percentage of the excess. 

Effective January i, 1935, in all counties of 10,000 or more in¬ 
habitants, the offices of tax assessor and tax collector will be con¬ 
solidated into one office of “Assessor and Collector of Taxes,” to 
be elected for a two-year term. In other counties the sheriff will 
serve ex officio as assessor and collector of taxes. This change 
was effected by a constitutional amendment adopted at the general 
election in November, 1932, and by enabling legislation passed by 
the Forty-third Legislature. 14 

The county treasurer is elected biennially by the qualified voters 
of the county, and is more truly a county officer than the assessor 
and collector in that he performs no functions for the State. He 
receives funds belonging to the county and disburses them under 
the direction of the commissioners’ court. He must make a minute 
report to every regular term of the commissioners’ court, and is 
charged with the duty of examining the accounts and records of 
the clerks, sheriff, justices of the peace, constables, and tax col¬ 
lector to find out if they have paid over all county funds. He also 
makes reports to the county clerk. Funds are deposited in the 
county depository and paid out by the treasurer on proper order. 
At a recent session of the Texas Association of County Judges and 
Commissioners it was suggested that the office of county treasurer 
be abolished and that the duties of the office devolve upon the 
county depository and auditor. 15 

The district court, in counties of over 35,000 population having 
assessed values of $15,000,000 or more, or where the commission¬ 
ers’ court wishes, appoints a county auditor for a term of two 
years. He must be a competent accountant and furnish bond in the 
sum of $5,000. He has oversight of the books and records of the 
officers of the county receiving funds. He checks these books quar- 

14 General Laws, 43d Leg., reg. sess., XIX-XX, 598-600 (1933)- 

15 Houston Post-Dispatch, October 4, 1929. 


154 


GOVERNMENT OF TEXAS 


terly at least, and reports periodically to the commissioners’ court. 
He must advertise for bids on county supplies, and prepare an 
estimate of revenues and expenses for the court in the preparation 
of the budget. In counties having an auditor, the county clerk is 
relieved of his financial duties. 

The county is an important unit for public school administration, 
and the agencies for the performance of this task are the board 
of five county school trustees and the county superintendent of 
public instruction. The trustees are elected, one at large and one 
from each commissioners’ precinct, to serve for two years, al¬ 
though their terms are not coordinate. The county board estab¬ 
lishes high schools, prescribes courses of study, divides the county 
into districts and changes district lines, and is vested with title to 
school properties within the county. The board hears appeals from 
the decisions of the county superintendent. It meets quarterly and 
its members receive a small “per diem” for their work. 

The county superintendent, who is secretary and executive offi¬ 
cer of the board, is elected at a general election for a four-year 
term in counties having 3,000 scholastic population. He must be 
the holder of a teachers’ first-grade or permanent certificate. In 
counties with a scholastic population of less than 3,000 the county 
judge acts as county superintendent ex officio unless the office of 
county superintendent has been created for such county at an elec¬ 
tion called upon petition of twenty-five per cent of the qualified 
voters of the county. In counties having a population of 350,000 or 
more the county superintendent is appointed by the county board of 
education and holds office for two years. 

The county superintendent performs certain functions independ¬ 
ently of the board of trustees. He has immediate supervision of 
public education in his county under the direction of the State 
Superintendent. He visits and examines public schools, and holds 
an annual institute. He approves vouchers drawn against the 
school fund, and distributes free textbooks to the schools of the 
county. He also examines applicants for teachers’ certificates and 
keeps a record of certificates held by those teaching in his juris¬ 
diction. 

In counties having a population of 100,000 or over, the “county 
unit system” may be adopted. Under this plan there are seven 
county school trustees, three elected at large and one from each 
precinct, with overlapping four-year terms. This board determines 
the educational policy of the county, consolidates schools, and pre- 


LOCAL GOVERNMENT 


155 


scribes courses of study. All schools in the county open on the 
same date, and the board may levy a school tax of $1.00 after 
popular authorization. Under this system the county board ap¬ 
points the county superintendent. After a trial of two years the 
unit plan may be abandoned. 

Counties have a number of minor officials such as the county 
surveyor, elected for a two-year term; the county health officer, 
appointed for like tenure by the commissioners’ court; the inspec¬ 
tor of hides and animals, elected in about one-third of the counties 
for a two-year term; justices of the peace, elected from each jus¬ 
tice’s precinct; and notaries public, appointed by the Governor with 
the consent of the Senate. 

Subdivisions of the County .—There are three classes of govern¬ 
mental units within the county. The first consists of purely admin¬ 
istrative districts and includes the commissioners’ precincts, road 
precincts, health districts, justices’ precincts, and election precincts. 
The second class consists of the subdivisions with corporate pow¬ 
ers other than cities and towns, such as school districts, road dis¬ 
tricts, drainage districts, navigation districts, water preservation 
and control districts, water improvement districts, fresh water 
supply districts, and levee and overflow or improvement districts. 
The third class of subdivisions within the county includes incorpo¬ 
rated cities, towns, and villages. They are in no way subordinate to 
the county, but their presence raises vexing problems as to the 
relations between the two governing agencies. 

Personnel .—The problem of personnel has been given very little 
attention in Texas counties. The greater part of the personnel of 
county government is elected, although in the larger counties a 
large number of deputies and clerks are employed. Usually these 
subordinates are appointed under the “spoils” principle, although 
there are doubtless a considerable number of appointing officials 
who follow the merit principle. A civil service law for Tarrant 
County, enacted by the Forty-first Legislature, was in operation 
for a brief period before it was declared unconstitutional by a 
local court. 16 

Compensation of Local Officials .—The Constitution of 1876 
provides that many local officials shall be paid by fees to be pre¬ 
scribed by the Legislature. General statutes governing the com¬ 
pensation of local officials have become the exception rather than 
the rule, owing to the passage of numerous laws with special ap- 

16 Laws, 41st Leg., reg. sess., 194-196 (1929)* 


156 


GOVERNMENT OF TEXAS 


plication. 17 The existence of over 500 fee laws has made generali¬ 
zations regarding the compensation of local officials practically 
impossible. 

Complaints regarding abuses of the fee system have increased 
in recent years. On three separate occasions an amendment to the 
Constitution has been submitted to the people for the abolition of 
the fee system, but in each instance it has been defeated. As a re¬ 
sult of investigations made by committees of the Forty-first and 
Forty-second Legislatures, statutes have been passed prescribing 
the maximum amounts of annual fees that may be retained by local 
officers in counties of defined population. 18 

A constitutional amendment proposed by the Forty-third Legis¬ 
lature will be submitted to the voters at the general election in 
November, 1934. It abolishes the fee method of compensating all 
district officers and all county officers in counties having a popula¬ 
tion of 20,000 or more. It permits the commissioners’ court in 
counties with a population of less than 20,000 to decide whether 
county officers shall be paid on a fee or a salary basis. In all coun¬ 
ties the commissioners’ court is to decide the method of compen¬ 
sation of precinct officers. 19 

Relations between State and County .—State control over local 
units may be legislative, judicial, or administrative. The Legisla¬ 
ture, being the repository of residual power, has complete control 
over counties except as prohibited by the Constitution. The tend¬ 
ency has been as new Constitutions were drafted to restrict further 
the Legislature in legislation affecting counties, until the county is 
now thoroughly embedded in the Constitution—secure from both 
legislative dabbling and constructive reform. These limitations con¬ 
cern such things as the creation, area, organization, powers, taxing 
limitations, and bonded indebtedness of counties. 

Judicial control is secured principally through the jurisdiction 
of the courts to pass upon the legality of acts of county officers. 
All county officials are removable by the district court for incom¬ 
petency, official misconduct, or habitual drunkenness. 

Administrative control of the county by the State is most highly 

17 See “Index of Constitutional and Statutory Provisions Relating to Com¬ 
pensation of County, District and State Officials and Employees,” Second 
Biennial Report of the State Auditor and Efficiency Expert, v. 8 (1932). 

18 See Final Report and Recommendations of the Senate Investigating Com¬ 
mittee, 42d Legislature (1933), and General Laws, 41st Leg., 2d called sess., 
222-224 (1929); ibid., 41st Leg., 4th called sess., 30-39 (1930); ibid., 426. 
Leg., reg. sess., 822-824 (1931) ; ibid., 43d Leg., reg. sess., 734-745 (1933). 

19 General Laws, 43d Leg., reg. sess., 1004-1006 (1933). 


LOCAL GOVERNMENT 


157 


developed in educational affairs. In financial affairs the county is 
subjected to a lesser degree of State control, the tax collector hav¬ 
ing to make monthly reports to the Comptroller. The county health 
officer is under the supervision of the State Board of Health in 
certain respects. Central control in highway affairs is secured 
through the power of the State Highway Department to designate 
and construct State highways. 

Defects in County Government .—Professor James has sug¬ 
gested the following points as some of the chief defects in Texas 
.county government: (i) excessive rigidity and uniformity result¬ 
ing from the minute provisions of the Constitution regarding 
counties; (2) the multiplicity of elective offices; (3) the fee sys¬ 
tem of paying public officers; (4) the lack of a system of county 
police; (5) the profusion of subordinate areas provided by law; 
(6) the unsatisfactory relationship existing between the county 
and the incorporated communities within it. 20 

Reform of County Government .—Until the last few years little 
constructive thought was devoted to the problem of the reform of 
county government. The abuses of the fee system and the increas¬ 
ing cost of local government stimulated an awakening of interest 
in the problem. The passage, in 1931, of the uniform budget law 
and the law requiring reports on local taxes and indebtedness has 
been noted. 21 A proposed constitutional amendment providing that 
counties of 60,000 population or more should have the power to 
draw up home rule charters, and that city and county governments 
should be permitted to consolidate, passed the House at the session 
of 1931, but failed in the Senate by a single vote. 22 Mention has 
been made of the fee investigations and the resulting legislation, 
and of the proposed constitutional amendment to abolish the fee 
system. The adoption of the amendment consolidating the offices 
of tax assessor and tax collector has also been noted. Purchasing 
agents were provided for some of the larger counties, and the 
county judge of each county with a population between 300,000 
and 355,000 was made the budget officer of the county by legisla¬ 
tion enacted in 1933. 23 

The Forty-third Legislature, 1933, witnessed the introduction 

20 The foregoing description of Texas county government is based princi¬ 
pally upon County Government in Texas by H. G. James, revised by Irvin 
Stewart, and published as University of Texas Bulletin, No. 2525 (1925). 

21 See Ch. VI. 

22 American Political Science Review, XXV, 1013-1015 (1931). 

23 General Laws, 43d Leg., reg. sess., 11, 107, no (1933). 


158 


GOVERNMENT OF TEXAS 


of a number of constitutional amendments for the reorganization 
of county government, and two succeeded in passing both houses 
for submission to a popular vote. One proposed amendment, add¬ 
ing sec. 2-A to Article IX, which will be on the ballot at the gen¬ 
eral election in November, 1934, would vest general management 
and control of the affairs of the county in the commissioners’ court, 
subject to the authority of the Legislature and of all general laws 
not in conflict with the provisions of the proposed amendment. The 
offices of district clerk and county clerk would be combined into 
that of a record clerk, and the duties of tax assessor and tax col¬ 
lector would be combined in those of a tax clerk; the new officers 
would be elected for a term of two years. Authority is given to the 
commissioners’ court to combine the offices of county treasurer and 
county surveyor, and to fix the compensation of all county and pre¬ 
cinct officers, with certain exceptions. Contracts may be made be¬ 
tween the commissioners’ court of the county and the governing 
boards of cities, towns, and districts within the county, for the 
performance of certain services by the county for such cities, 
towns, or districts, or vice versa. Such contracts must be approved 
by the Attorney-General and are limited to a two-year period. The 
Legislature may provide by general law for “complete forms of 
county government and organization different from that provided 
for in this Constitution to become effective in any county when 
submitted in such manner as may be prescribed by the Legislature 
to the qualified voters of such county in an election held for such 
purpose and approved by a majority of the qualified voters voting 
in said election.” 24 

County Home Rule .—A second proposed amendment, approved 
by the electors on August 26, 1933, provides for the adop¬ 
tion of home rule charters by counties. Only an outline of its 
lengthy provisions can be given here. 25 Any county with a popu¬ 
lation of 62,000 or more may, by a favoring vote of the resident 
qualified electors of the county, adopt a county home rule charter, 
and the Legislature, by an affirmative vote of two-thirds of the 
total membership of both houses, may authorize the adoption of 
home rule charters by counties with less than 62,000 population. 
In charter elections the votes cast by electors in cities and towns 
are to be kept separately, but counted collectively, and the votes 

24 General Laws, 43d Leg., reg. sess., 992-994 (1933). 

25 For the complete text of the amendment, see Art. IX, sec. 3 of the Con¬ 
stitution, as printed in the Appendix. 


LOCAL GOVERNMENT 159 

of electors of the county, not resident within the limits of any city 
or town, are to be kept separately and counted separately, and the 
charter shall not be adopted unless it is favored by both a major¬ 
ity of the urban vote and a majority of the rural vote. No charter 
may “inconsonantly” affect the operation of the general laws of the 
State relating to the judicial, tax, fiscal, educational, police, high¬ 
way, and health systems, or be inconsistent with the sovereignty 
and established public policies of the State, or operate to impair 
the exemption of homesteads as established by the Constitution 
and laws. 

Complete freedom is allowed the county in choosing its form of 
government. It may continue the commissioners’ court, as now con¬ 
stituted or in a modified form. On the other hand, it may provide 
for any other form of government, the only limitation being that 
the governing body must be elective and the term must not exceed 
six years. If it wishes, a county may adopt the manager plan. 

With the consent of the people expressed at the ballot box, in 
accordance with a method prescribed in the amendment, a county 
may assume some or all of the governmental and proprietary func¬ 
tions of any city, town, district, or other political subdivision 
within its boundaries. The county may contract, for not more than 
two years, with the principal city of the county to perform one or 
more of its functions. 

Other sections of the amendment deal with the method of com¬ 
pensation of officials, consolidation of officers, assessment and col¬ 
lection of taxes, borrowing, and with “areas urban in character.” 26 
An enabling act providing for the necessary machinery for putting 
the amendment into operation was passed in anticipation of its 
adoption. 27 The amendment is the most significant change yet 
adopted for the reorganization of county government in Texas. 

MUNICIPAL GOVERNMENT 

Source and Extent of Municipal Powers .—Until the rise of the 
home rule movement, the unquestioned rule of American juris¬ 
prudence was that municipal corporations derived their existence 
and powers from the Legislature and that their life was at the 
mercy of legislative caprice. Legislatures assumed the power to 
grant charters of incorporation by special act, but the cities finally 

26 See articles by Alonzo Wasson in Dallas Morning News, August 7, 8, 9, 
10, 1933 . 

27 General Laws, 43d Leg., reg. sess., 784-798 U933)- 


160 


GOVERNMENT OF TEXAS 


conquered what they called the “rural legislative tyrant” by secur¬ 
ing the adoption of general laws under which incorporation might 
be had. The emptiness of their victory became apparent with the 
continuation of special legislation. Prohibitions upon special legis¬ 
lation were ineffective, and the latest step in the efforts of cities to 
gain local autonomy and immunity from legislative interposition in 
local affairs is constitutional home rule. Texas cities operate under 
all these forms; i.e., special charter, general laws, and home rule 
charter. 

Soon after the formation of the Republic of Texas supplicants 
appeared at the bar of its Congress in quest of municipal charters 
of incorporation. Special charters were issued by the Congress and 
subsequently by the Legislature of the State Government. After 
the adoption of the present Constitution, general laws were en¬ 
acted under which cities might incorporate by following a specified 
procedure. 

In defining the powers which a city may exercise under special 
charters or the general laws, the courts have adopted the “rule of 
strict construction.” “Being a creature of the state, a municipal 
corporation possesses only such powers as the state grants to it in 
express terms, or such as are necessarily implied from the express 
grants, or such as are inherent or indispensable to its corporate 
existence. Such inherent powers are generally defined to be the 
right to sue and be sued, to grant, receive, and hold property in the 
corporate name, to have a seal, to make by-laws and ordinances for 
the government of the corporation, and to have succession.” 28 
Furthermore, when “the powers are doubtful, they are held not 
to exist.” 29 

In an effort to vest cities with a degree of local autonomy and 
to relieve them of the necessity of continually begging additional 
powers of the Legislature, the “home rule amendment” was 
adopted in 1912, which provides: 

Cities having more than five thousand (5000) inhabitants may, by 
a majority vote of the qualified voters of said city, at an election held 
for that purpose, adopt or amend their charters, subject to such limita¬ 
tions as may be prescribed by the Legislature, and providing that no 
charter or any ordinance passed under said charter shall contain any 
provision inconsistent with the Constitution of the State or of the general 
laws enacted by the Legislature of this State; said cities may levy, as- 

28 Ball v. Texarkana Water Corp., 127 S. W. 1060 (1910). 

29 City of Uvalde v. Uvalde Electric & Ice Co., 235 S. W. 625 (1921). 


LOCAL GOVERNMENT 


161 


sess and collect such taxes as may be authorized by law or by their 
charters; but no tax for any purpose shall ever be lawful for any one 
year which shall exceed two and one-half per cent, of the taxable prop¬ 
erty of such city and no debt shall ever be created by any city unless 
at the same time provision be made to assess and collect annually a 
sufficient sum to pay the interest thereon and creating a sinking fund 
of at least two per cent thereon; and provided further, that no city 
charter shall be altered, amended or repealed oftener than every two 
years. 30 

Before the Legislature could meet and adopt an enabling act, 
twenty-four cities hastily exercised the new prerogative of draft¬ 
ing their own charters. The Legislature, in the enabling act, oblig¬ 
ingly legalized these apparently premature moves. The act listed 
thirty-four things which a city might do, concluding with the state¬ 
ment that such enumeration should not preclude the exercise of 
other powers incident to the enjoyment of local self-government. 
Later the court said the amendment was self-executing, the en¬ 
abling act unnecessary, and mildly chided the Legislature for its 
over-zealousness. 31 

The amendment was silent upon the procedure of adoption of 
charters framed under its provisions, but the enabling act reme¬ 
died this shortcoming. The question of selecting a commission to 
frame a new charter may be submitted to the electorate on a two- 
thirds vote of the city council or upon petition of ten per cent of 
the qualified voters. Provision is made on the ballot bearing such 
question for the election of a charter commission of not less than 
fifteen members, nor more than one for each 3,000 inhabitants. 
Within forty to ninety days after the completion of the work of 
the commission, the charter is submitted, each section independ¬ 
ently, to popular vote. A majority carries. 

There has been considerable criticism of the home rule amend¬ 
ment. First, due to the ambiguity of the amendment, there has been 
confusion on the part of both the Legislature and the courts as to 
the exact nature of home rule. The quandary of the Legislature is 
shown in the enumeration of powers in the enabling act. However, 
the legal aspects of home rule are beginning to become clarified 
and it is recognized that the effect of the home rule amendment was 
to vest powers of local government in the electorate of cities of 
over 5,000 inhabitants wishing to operate under its provisions, 

30 Constitution, Art. XI, sec. 5. 

31 Le Gois v. State, 190 S. W. 724 (1916). 


162 


GOVERNMENT OF TEXAS 


subject to limitations under the Constitution and general laws of 
the State. The function of the Legislature in relation to such cities 
is not to delegate but to limit powers. “We no longer must look 
to the Legislature to grant to a city power to amend its charter or to 
insert therein any given provision, but we only look to the acts of 
the Legislature to see if that body by any provision adopted has 
placed any limitations on the power of a city to act in the matter.” 32 
“Since the adoption of said constitutional section [the home rule 
amendment], there is no longer a necessity for the Legislature to 
confer power upon such city councils, but it may limit its powers 
only.” 33 

A second criticism is the superiority of general laws of the State 
to home rule charters, creating an opening for legislative interfer¬ 
ence with purely local matters. It is the contention of the propo¬ 
nents of home rule that municipal ordinances and charters should 
prevail over general acts of the Legislature in purely local affairs. 
The Legislature under its power of passing general laws regulates 
the working hours of police and firemen, thus showing the defense¬ 
less position of home rule cities. Much litigation is necessary to 
establish the dividing line between local ordinances and general 
laws. For example, the home rule grant does not include the power 
to exempt utilities from liabilities in tort. 34 A levy of a gasoline tax 
by a city under its home rule power is void because of the superi¬ 
ority of general law. 35 

Regardless of the superiority of general laws, a Court of Civil 
Appeals has declared that the purpose of the home rule amend¬ 
ment “to vest in the municipal corporations a more extended power 
to enable them to safeguard their life, health, comfort, and prop¬ 
erty rights of the citizens of such municipalities as should choose 
to operate under its provisions, cannot be questioned.” 36 The ex¬ 
tent of these supplementary police powers must be judicially ascer¬ 
tained. 

Numerous miscellaneous criticisms of the amendment have been 
made. The legality of the incorporation of such a city may not be 
established other than by judicial decision. The prohibition upon 
amendment or alteration more often than every two years is a 

32 Le Gois v. State, 190 S. W. 724 (1916). 

83 Xydias Amusement Co. v. City of Houston, 185 S. W. 415 (1916). 

34 Green v. City of Amarillo, 244 S. W. 241 (1922). There seems to exist 
a certain confusion in this decision as to the nature of home rule. 

36 City of Lubbock v. Magnolia Petroleum Co., 6 S. W. (2d) 80 (1928). 

86 City of Wichita Falls v. Continental Oil Co., 5 S. W. (2d) 561 (1928). 


LOCAL GOVERNMENT 


163 


requirement of questionable wisdom. 87 No method is provided for 
the ascertainment of the population of a would-be home rule city. 38 

The rule of strict construction is applied to home rule cities with 
as great stringency as to cities operating under special charters 
or general laws. The grant of power must be from the municipal 
electorate through the city charter rather than from the Legislature, 
of course. “Of every municipal corporation the charter or statute 
by which it is created is its organic act. Neither the corporation 
nor its officers can do any act, or make any contract, or incur any 
liability not authorized thereby, or some legislative act applicable 
thereto. All acts beyond the scope of the powers granted are 
void.” 39 After having shown the grant of authority to the corpo¬ 
ration in its charter, it must be shown that such provision does not 
conflict with the Constitution or the general laws. “The state Con¬ 
stitution, the Enabling Act, and the general laws of the state in 
pari materia constitute the fundamental laws of home rule cities, 
and they rank in the order above given.” 40 

Municipal Liability. —Municipal functions have been divided 
by the courts into (i) governmental or public, and (2) private or 
corporate. Torts occasioned by the performance of governmental 
functions ordinarily entail no damages, whereas the acts of the 
municipality in its corporate capacity are subject to liability. Fire 
protection, 41 police protection, 42 health protection, education, parks 
and playgrounds, and charities and corrections are examples of 
governmental functions. Electric power plants, 43 street railways, 44 
street cleaning, garbage removal and disposal, 45 and waterworks are 

. 37 This period would be reduced to one year by the provisions of a constitu¬ 
tional amendment to be submitted to the voters at the general election in No¬ 
vember, 1934. At the same time there will be submitted another amendment 
empowering home rule cities to amend their charters so as to provide a four- 
year term for elective city officials. General Laws, 43d Leg., reg. sess., 963- 
966 (1933). 

38 See Tom Finty, Jr., “Constitutional Handicaps on Texas Cities,” Texas 
Municipalities, X, 103-106 (1923) ; Albert A. Long, “Home Rule in Texas,” 
ibid., VI, 10-19 (1919) ; W. H. Scott, “Powers and Limitations of Municipali¬ 
ties Under Home Rule Amendment and the Enabling Act,” ibid., XV, 212- 
214 (1928) ; H. G. James, “Home Rule in Texas,” ibid., V, 67-76 (1918). 

39 Foster v. City of Waco, 255 S. W. 1104 (1923). 

40 Cameron v. City of Waco, 8 S. W. (2d) 249 (1928). 

41 Barnes v. City of Waco, 262 S. W. 1081 (1924) ; Shanewerk v. City of 
Fort Worth, 11 C. A. 271 (1895). 

42 Stinnett v. City of Sherman, 43 S. W. 847 (1897). 

43 City of Greenville v. Branch, 152 S. W. 478 (1913). 

44 Green v. City of Amarillo, 244 S. W. 241 (1922). 

45 0 strom v. City of San Antonio, 94 Tex. 523 (1901); City of San 


164 


GOVERNMENT OF TEXAS 


corporate or private functions. 46 The line separating governmen¬ 
tal and private functions and thus fixing municipal liability is by 
no means clear and may vary from case to case. “It would seem 
that the liability should result from the occasioning of injury and 
not from the character of the function.” 47 

Municipal Organization .—Although the commission form of 
government in its essentials had previously existed in a number of 
places, it is popularly thought to have originated in Galveston fol¬ 
lowing the disastrous storm of 1900. The old aldermanic form of 
government collapsed in the crisis, and the Deepwater Committee, 
an organization of business men previously formed to secure har¬ 
bor improvements, took the situation in hand and made plans for 
a new charter, which was enacted by the Legislature in 1901. 

The new charter vested the governing powers of the city in a 
board consisting of three gubernatorial appointees and two elected 
by the people of the city, but at present all the commissioners are 
popularly elected. 48 The mayor is the president of the board, may 
vote, but has no veto power. The commission enacts ordinances, 
and appoints officers in all departments. The commissioners are 
not full-time officials, but are supervisors of the four departments. 
The actual management of the routine work is handled by expert 
superintendents appointed by the commission. Commissioners hav¬ 
ing to devote only about two hours a day to their duties, it is pos¬ 
sible to secure the services of able citizens for these offices. 

With several important changes the Galveston plan was adopted 
in Houston in 1905 by special act of the Legislature, but was con¬ 
siderably changed following the adoption of the home rule amend¬ 
ment in 1912. The commissioners in Houston are the actual heads 
of the departments, rather than the lay supervisors. In Galveston 
the commissioners are elected without reference to any specific 
department, but candidates in Houston run for election to head a 
specific department as the Fire Department or the Water Depart¬ 
ment. 

Antonio v. Mackey, 36 S. W. 761 (1913); City of Coleman v. Price, 117 
S. W. 905 (1909). 

^ Lens en v. City of New Braunfels, 35 S. W. 341 (1896). 

47 Dodd, op. cit. 

48 The provision calling for appointment by the Governor was held null in 
Ex parte Lewis, 73 S. W. 811 (1903), by the Court of Criminal Appeals. 
The Supreme Court later in Brown v. City of Galveston, 97 Tex. 1 (1903) 
held this feature constitutional. The Court of Criminal Appeals in cases 
involving similar provisions for other cities followed the holding in Ex 
parte Lewis in Ex parte Levine, 81 S. W. 1206 (1904), but in Ex parte 
Tracey, 93 S. W. 538 (1905) came around to the Supreme Court view. 



LOCAL GOVERNMENT 


165 


From Texas the commission plan was carried to Des Moines 
and from there spread rapidly over the nation. In 1907 Dallas, 
Fort Worth, El Paso, Denison, and Greenville adopted the plan. 
In 1909 Austin, Waco, Palestine, Corpus Christi, and Marshall 
were granted commission charters by the Legislature, and in the 
same year a general law was adopted allowing cities to adopt the 
plan after a referendum. By 1913, however, the commission plan 
had reached the zenith of its popularity and came to be largely 
superseded by the council-manager plan. 49 

The heyday of the commission plan passed in the wake of the 
Dayton flood of 1913. Although the council-manager plan had been 
used before this time in several places, the movement for its adop¬ 
tion received a potent impetus from the success which attended its 
use in Dayton. The essentials of the plan were included in the 
Dayton charter which provided for a commission of five members 
elected at large for a term of four years. The commission meets 
once a week and its functions relate to the enactment of ordinances, 
the making of appropriations, and the appointment of the city man¬ 
ager. Thus the commission is policy-determining, while the manager 
is the administrative head and responsible for the efficient conduct 
of the departments. The manager appoints and controls the direc¬ 
tors of departments, attends and gives information at commission 
meetings, keeps the council informed as to the financial status of 
the city, and sees that all laws and ordinances are enforced. There 
is complete integration of the administrative machinery and a clear- 
cut distinction between policy-formation and policy-execution— 
the most fundamental essentials of the manager plan. The new 
method of municipal government spread from Dayton until now 
over 445 cities are operating under it. 

The experience of Texas cities with the council-manager plan 
has been uniformly satisfactory. The advantages accruing under 
the operation of the plan relate principally to increased municipal 
services at decreased costs. As the council-manager plan is not 
provided for by general law, only home rule cities may adopt the 
plan by charter, although smaller cities may do so by ordinance. 
Amarillo in 1913 was the first Texas city to change from the com¬ 
mission form of government to the council-manager form. Thirty- 
nine Texas cities now use the manager form: Austin, Amarillo, 
Beaumont, Belton, Big Spring, Borger, Brenham, Brownsville, 

49 See Tso-Shuen Chang, History and Analysis of the Commission and 
City-Manager Plans of Municipal Government in the United States, 49 ~ 74 > 
I 5 i-I 52 (1918). 


166 


GOVERNMENT OF TEXAS 


Brownwood, Bryan, Burkburnett, Dallas, Eastland, Fort Worth, 
Gainesville, Goose Creek, Jacksonville, Kerrville, Longview, Lub¬ 
bock, Lufkin, Marshall, Mexia, Pampa, Panhandle, Port Arthur, 
San Angelo, Sherman, Stamford, Sweetwater, Taylor, Teague, 
Temple, Terrell, Tulia, Tyler, Waco, Wichita Falls, and Yoakum. 50 

Under the provisions of a general law, Texas cities with over 
600 inhabitants may adopt the aldermanic or mayor-council form 
of government. An election for incorporation under the provisions 
of the law may be called by the county judge on petition of fifty 
electors of the city or town. Any city already incorporated may 
adopt the provisions of the law by a two-thirds vote of the city 
council. 

The officials under this system include a mayor and two aider- 
men from each ward, a treasurer, an assessor and collector, a sec¬ 
retary, a city attorney, a marshal, a city engineer, and other of¬ 
ficers as directed by the council. The office of treasurer, assessor 
and collector, city attorney, and city engineer may be dispensed 
with and the duties of such officers be conferred upon other officers. 
The powers and duties of these officials as well as the powers of 
the municipal corporation are set out at considerable length in the 
statute. 

The city council is composed of the mayor and two aldermen 
from each ward. The aldermen must reside in their ward and shall 
hold no other employment under the city government nor be di¬ 
rectly or indirectly interested in any work, business, or contract 
of the city. The council has the power to pass, amend, or repeal 
ordinances and to enforce the observance of such regulations with 
the limitation that no fine shall exceed one hundred dollars. Forty- 
three specific grants are made to the city council including power 
to care for health, police, charities, streets, street lighting, building 
regulations, water supply, market, parks, libraries, taxation, fire 
protection, and public utilities. 

The mayor must be a qualified elector and must have resided 
twelve months within the city at the time of his election. He is the 
chief executive officer of the city and presides over meetings of 
the council. He may summon special sessions of the council, make 
recommendations to it, and veto its acts. By a majority vote, after 
reconsideration, the council may pass an ordinance over the mayor’s 
veto. 

The city marshal is ex officio chief of police. It is his duty to at- 
50 City Manager Year Book, 1933, 332-333. 


LOCAL GOVERNMENT 


167 


tend meetings of the corporation court, to execute warrants, quell 
riots, disorders, and disturbances, arrest violators of the peace, and 
in general to prevent and suppress crime. He is usually popularly 
elected. 

The city secretary attends council meetings, keeps minutes of the 
proceedings, engrosses and enrolls its ordinances, preserves all 
papers and files of the corporation. He draws warrants on the 
treasurer, and performs other duties as may be required by law, 
such as the duties of the clerk of the corporation court or of the 
tax assessor and collector. 

The treasurer furnishes bond in favor of the city and is the cus¬ 
todian of the corporate funds. He receives all city funds and makes 
payments from the city treasury on proper order. He is charged 
with the duty of rendering a report to the council quarterly, and to 
publish semi-annually a report showing the receipts and expendi¬ 
tures for the six months next preceding, and of the general condi¬ 
tion of the treasury. 

The assessor and collector makes the assessments, collects the 
taxes, and performs other similar duties ordinarily connected with 
such positions. In small cities it is the custom to place the duties of 
the assessor and collector and often the treasurer upon the city 
secretary. A city health officer and health inspectors are appointed 
by the city council. 

The corporation court has jurisdiction within the city’s terri¬ 
torial limits of criminal cases arising under the municipal ordi¬ 
nances and also has concurrent jurisdiction with the justice of the 
peace in criminal cases arising under State laws, in which punish¬ 
ment is by fine not exceeding two hundred dollars. The judge of 
the corporation court is known as the recorder. The council may 
provide for the mayor to act as recorder. It may elect a clerk of 
the corporation court or impose the duties of the position upon 
the city secretary. 

Personnel .—In four of the larger cities of the State there have 
been systematic installations of the merit system. The merit idea 
may be followed in principle in other cities, but only in Dallas, Fort 
Worth, Houston, and El Paso have commissions been set up for 
its administration. In each of these cities a substantial number of 
the non-policy-determining employees are included in the classified 
service. Each commission has a secretary who gives examinations 
and grades the papers. Removal, ordinarily, may not be effected 
without consent of the commission. The advocates of the merit 


168 


GOVERNMENT OF TEXAS 


principle predict the eventual adoption of the merit system in the 
chief cities of the State. 51 

Central Control of Municipalities .—As has been pointed out, 
central supervision may take the form of administrative, legislative, 
or judicial control. The power which the Legislature has over 
cities, whether incorporated under the general laws or organized 
under the home rule amendment, has been indicated. Judicial con¬ 
trol arises, of course, through decisions on cases involving the 
legality of acts of the municipal corporation or its officers. 

Administrative control has been developed to a limited extent 
over Texas cities. The principal financial control is the require¬ 
ment that municipal bond issues be examined and approved by the 
Attorney-General and registered by the Comptroller. The city 
treasurer makes an annual report to the Comptroller showing the 
general financial condition of the city, and a copy of the annual 
municipal budget must be filed with the Comptroller. An annual 
report on taxes and indebtedness must be furnished to the State 
Auditor. 

In health matters the State Board of Health has a certain amount 
of control over local health officers, but it has been the practice to 
secure local action by cooperation rather than by coercion. The State 
Board may remove the city health officer. Through its Bureau of 
Sanitary Engineering, inspections and recommendations are made 
to about 350 of the 400 municipal water supply systems in the State 
annually. In the supervision of sewage disposal plants the depart¬ 
ment has attempted to enforce the anti-stream pollution act. 

Educational control aims to equalize opportunities, standardize 
curricula, and raise standards of the school equipment and instruct¬ 
ing staff. After meeting certain requirements State aid is granted 
to public schools. Before the work of a high school is accredited 
for college entrance it must meet with the approval of the State 
Department of Education. 

Although there is no State utility commission, the gas utility 
division of the Railroad Commission regulates companies furnish¬ 
ing natural gas to cities. The city may reduce the rate, but the 
company affected may appeal to the Commission, which holds a 
hearing and determines if such a rate is reasonable. Applications 
for increasing the rate are made to the city government. If re- 

ei B. F. Wright, Jr., The Merit System in American States with Special 
Reference to Texas, University of Texas Bulletin, No. 2305, 91-96 (1923). 
See also, reports and rules of the various municipal civil service commis¬ 
sions of Texas. 


LOCAL GOVERNMENT 


169 


jected, the utility may appeal to the Commission. The other utili¬ 
ties are free from central administrative control, but the cities may 
carry the rate question to the courts for settlement. 

The State Board of Insurance Commissioners exercises a cer¬ 
tain amount of control over municipalities. Fire hazards are elimi¬ 
nated by the city fire marshal at the instance of the State officials. 
By virtue of its control of fire insurance rates, the Commission vir¬ 
tually controls types of water main and supply construction and 
greatly stimulates municipal activity to eliminate dangerous fire 
hazards. 52 

League of Texas Municipalities .—An organization of the cities 
of Texas was formed in 1913 at the suggestion of A. P. Wool- 
ridge, Mayor of Austin, and Professor Herman G. James, Direc¬ 
tor of the Bureau of Municipal Research of the University of 
Texas, with the title of the “League of Texas Municipalities.” 
For several years it was operated in connection with the Bureau 
of Municipal Research at the University of Texas, but with the 
discontinuance of the Bureau in 1925, the League set up inde¬ 
pendently of the University and at present maintains headquarters 
at Houston. The League furnishes legal and other technical infor¬ 
mation to its member cities, and endeavors to secure the passage 
of needed statutes by the Legislature. Its annual conventions 
permit municipal officials to meet and discuss their problems. A 
monthly magazine, Texas Municipalities, is published by the 
League, which contains news of the League and articles of interest 
to municipal officials. The membership numbers 195 cities. The 
city managers of Texas maintain an organization called the Texas 
Association of City Managers, and there is also a City Attorneys’ 
Association. 


REFERENCES 

For a discussion of counties and municipalities in general, see C. P. 
Patterson, American Government, rev. ed., Chs. XLI-XLVI (1933), 
and other standard texts on American government and state government. 
See also Judd and Hall, The Texas Constitution, Chs. XIV, XV. An 
excellent analysis of the statutes affecting counties is made by H. G. 
James, County Government in Texas (1925). The statutes concerning 
both counties and cities may be found in the Revised Civil Statutes 
(1925) or with annotations in Vernon’s Annotated Revised Civil 

62 J. E. Pate, “Central Administrative Control over Municipalities in the 
Southwest/’ Southwestern Political and Social Science Quarterly, VIII, 
225-252 (1927). 


170 


GOVERNMENT OF TEXAS 


Statutes of the State of Texas (1926). A good account of the com¬ 
mission plan in Texas cities is given by Tso-Shuen Chang, History and 
Analysis of the Commission and City-Manager Plans of Municipal 
Government in the United States, Chs. Ill and V (1918). An analysis 
of the legal status of home rule cities has been made by Frank M. 
Stewart, “What Municipal Home Rule Means Today: Texas After 
Twenty Years,” National Municipal Review, XXI, 434-441 (1932). 
For articles on specific phases of municipal affairs and current problems, 
consult the files of Texas Municipalities. The annual reports of the 
larger cities may be examined with profit. During the existence of the 
Bureau of Municipal Research and Reference, later called the Bureau of 
Government Research, at the University of Texas, it published various 
bulletins under the title, Municipal Research Series. Although published 
several years ago, much of this material remains valuable. Two Masters’ 
Theses prepared by students at the University of Texas should be con¬ 
sulted: V. O. Key, Jr., A History of Texas County Government (1930), 
and Mary Evelyn Winfrey, Municipal Home Rule in Texas (1931). A 
comprehensive study of county government in Texas, prepared by Dr. 
Wallace C. Murphy after extensive field investigations, has been pub¬ 
lished by the University of Texas: County Government and Administra¬ 
tion in Texas, University of Texas Bulletin, No. 3324 (1933). 


APPENDIX 


THE CONSTITUTION OF THE STATE OF TEXAS 1 

Ratified February 15, 1876. 


PREAMBLE. 

Humbly invoking the blessings of Almighty God, the people of 
the State of Texas, do ordain and establish this Constitution. 


ARTICLE I. 

BILL OF RIGHTS. 

That the general, great and essential principles of liberty and 
free government may be recognized and established, we declare: 

Sec. 1. Texas Free and Independent.— Texas is a free 
and independent State, subject only to the Constitution of the 
United States, and the maintenance of our free institutions and 
the perpetuity of the Union depend upon the preservation of the 
right of local self-government, unimpaired to all the States. 

Sec. 2. All Political Power Is Inherent in the People.— 
All political power is inherent in the people, and all free govern¬ 
ments are founded on their authority, and instituted for their 
benefit. The faith of the people of Texas stands pledged to the 
preservation of a republican form of government, and, subject to 
this limitation only, they have at all times the inalienable right to 
alter, reform or abolish their government in such manner as they 
may think expedient. 

1 As amended to date (September, 1933). The text of the Constitution here 
printed is taken from the Texas Legislative Manual, 42nd Legislature (1931), 
which in its Foreword contains the following comment: “The Texas Consti¬ 
tution included herein is an exact copy of the original of 1876 with the amend¬ 
ments up to date. Errors in spelling, et cetera, appear just as they are in the 
original documents.” 



2 


THE CONSTITUTION OF THE STATE OF TEXAS 


Sec. 3. All Free Men Have Equal Rights. —All freemen, 
when they form a social compact, have equal rights, and no man, 
or set of men, is entitled to exclusive separate public emoluments, 
or privileges, but in consideration of public services. 

Sec. 4. There Shall Be No Religious Test for Office.— 
No religious test shall ever be required as a qualification to any 
office, or public trust, in this State; nor shall anyone be excluded 
from holding office on account of his religious sentiments, provided 
he acknowledge the existence of a Supreme Being. 

Sec. 5. How Oaths Shall Be Administered. —No person 
shall be disqualified to give evidence in any of the Courts of this 
State on account of his religious opinions, or for the want of any 
religious belief, but all oaths or affirmations shall be administered 
in the mode most binding upon the conscience, and shall be taken 
subject to the pains and penalties of perjury. 

Sec. 6. Freedom in Religious Worship Guaranteed; Libel. 
—All men have a natural and indefeasible right to worship Al¬ 
mighty God according to the dictates of their own consciences. No 
man shall be compelled to attend, erect or support any place of 
worship, or to maintain any ministry against his consent. No 
human authority ought, in any case whatever, to control or inter¬ 
fere with the rights of conscience in matters of religion, and no 
preference shall ever be given by law to any religious society or 
mode of worship. But it shall be the duty of the Legislature to pass 
such laws as may be necessary to protect equally every religious 
denomination in the peaceable enjoyment of its own mode of 
public worship. 

Sec. 7. No Appropriation for Sectarian Purposes. —No 
money shall be appropriated, or drawn from the Treasury for the 
benefit of any sect, or religious society, theological or religious 
seminary; nor shall property belonging to the State be appropri¬ 
ated for any such purposes. 

Sec. 8. Liberty of Speech and Press Guaranteed.— Every 
person shall be at liberty to speak, write or publish his opinions 
on any subject, being responsible for the abuse of that privilege; 
and no law shall ever be passed curtailing the liberty of speech or 
of the press. In prosecutions for the publication of papers, investi¬ 
gating the conduct of officers, or men in public capacity, or when 


THE CONSTITUTION OF THE STATE OF TEXAS 3 

the matter published is proper for public information, the truth 
thereof may be given in evidence. And in all indictments for libels, 
the jury shall have the right to determine the law and the facts, 
under the direction of the Court, as in other cases. 

Sec. 9. No Unreasonable Seizures and Searches Allowed. 
—The people shall be secure in their persons, houses, papers and 
possessions, from all unreasonable seizures or searches, and no 
warrant to search any place, or to seize any person or thing, shall 
issue without describing them as near as may be, nor without 
probable cause, supported by oath or affirmation. 

Section 10. Right of Accused Persons in Criminal Prose¬ 
cutions. —In all criminal prosecutions the accused shall hav a 
speedy public trial by an impartial jury. He shall have the right to 
demand the nature and cause of the accusation against him, and to 
have a copy thereof. He shall not be compelled to give evidence 
against himself and shall have the right of being heard by himself 
or counsel, or both, shall be confronted by the witnesses against 
him and shall have compulsory process for obtaining witnesses in 
his favor, except that when the witness resides out of the State 
and the offense charged is a violation of any of the anti-trust laws 
of this State, the defendant and the State shall have the right to 
produce and have the evidence admitted by deposition, under such 
rules and laws as the Legislature may hereafter provide; and no 
person shall be held to answer for a criminal offense, unless on 
an indictment of a grand jury, except in cases in which the punish¬ 
ment is by fine or imprisonment, otherwise than in the penitentiary, 
in cases of impeachment, and in cases arising in the army or navy, 
or in the militia, when in actual service in time of war or public 
danger. 

Sec. 11. Bail.— All prisoners shall be bailable by sufficient 
sureties, unless for capital offenses, when the proof is evident; but 
this provision shall not be so construed as to prevent bail after 
indictment found upon examination of the evidence, in such man¬ 
ner as may be prescribed by law. 

Sec. 12. The Writ of Habeas Corpus. —The writ of Habeas 
Corpus is a writ of right, and shall never be suspended. The Legis¬ 
lature shall enact laws to render the remedy speedy and effectual. 

Sec. 13. Excessive Bail and Fine and Unusual Punish¬ 
ment, Prohibited; Courts Open. —Excessive bail shall not be 


4 


THE CONSTITUTION OF THE STATE OF TEXAS 


required, nor excessive fines imposed, nor cruel or unusual punish¬ 
ment inflicted. All courts shall be open, and every person for an in¬ 
jury done him, in his lands, goods, person or reputation, shall have 
remedy by due course of law. 

Sec. 14. No Person Shall Be Put Twice in Jeopardy. —No 
person, for the same offense, shall be twice put in jeopardy of life 
or liberty, nor shall a person be again put upon trial for the same 
offense, after a verdict of not guilty in a court of competent 
jurisdiction. 

Sec. 15. Right of Trial by Jury. —The right of trial by jury 
shall remain inviolate. The Legislature shall pass such laws as may 
be needed to regulate the same, and to maintain its purity and 
efficiency. 

Sec. 16. There Shall Be No Bill of Attainder or Ex Post 
Facto Law. —No bill of attainder, or ex post facto law, retroac¬ 
tive law, or any law impairing the obligation of contracts, shall 
be made. 

Sec. 17. Privileges and Franchises; Eminent Domain.— 
No person’s property shall be taken, damaged or destroyed for or 
applied to public use without adequate compensation being made, 
unless by the consent of such person; and, when taken, except for 
the use of the State, such compensation shall be first made, or se¬ 
cured by a deposit of money; and no irrevocable or uncontrollable 
grant of special privileges or immunities, shall be made; but all 
privileges and franchises granted by the Legislature, or created 
under its authority shall be subject to the control thereof. 

Sec. 18. No Imprisonment for Debt.— No person shall ever 
be imprisoned for debt. 

Sec. 19. Due Course of Law. —No citizen of this State shall be 
deprived of life, liberty, property, privileges or immunities, or in 
any manner disfranchised, except by the due course of the law 
of the land. 

Sec. 20. No Outlawry or Deportation. —No citizen shall be 
outlawed, nor shall any person be transported out of the State for 
any offense committed within the same. 

Sec. 21. Corruption of Blood; Forfeiture; Suicides. —No 
conviction shall work corruption of blood, or forfeiture of estate. 


THE CONSTITUTION OF THE STATE OF TEXAS 


5 


and the estates of those who destroy their own lives shall descend 
or vest as in case of natural death. 

Sec. 22. Treason. —Treason against the State shall consist only 
in levying war against it, or adhering to its enemies, giving them 
aid and comfort; and no person shall be convicted of treason ex¬ 
cept on the testimony of two witnesses to the same overt act, or on 
confession in open court. 

Sec. 23. Right to Bear Arms. —Every citizen shall have the 
right to keep and bear arms in the lawful defense of himself or 
the State; but the Legislature shall have power, by law, to regulate 
the wearing of arms, with a view to prevent crime. 

Sec. 24. Military Subordinate to Civil Authority. —The 
military shall at all times be subordinate to the civil authority. 

Sec. 25. Quartering Soldiers. —No soldier shall in time of 
peace be quartered in the house of any citizen without the consent 
of the owner, nor in time of war but in a manner prescribed by 
law. 

Sec. 26. Perpetuities; Monopolies; Primogeniture; En- 
tailments. —Perpetuities and monopolies are contrary to the 
genius of a free government, and shall never be allowed, nor shall 
the law of primogeniture or entailments ever be in force in this 
State. 

Sec. 27. Right of Petition Guaranteed. —The citizens shall 
have the right, in a peaceable manner, to assemble together for 
their common good; and apply to those invested with the powers 
of government for redress of grievances or other purposes, by 
petition, address or remonstrance. 

Sec. 28. Power to Suspend Laws. —No power of suspending 
laws in this State shall be exercised except by the Legislature. 

Sec. 29. “Bill of Rights” Inviolate. —To guard against 
transgressions of the high powers herein delegated, we declare 
that everything in this “Bill of Rights” is excepted out of the gen¬ 
eral powers of government, and shall forever remain inviolate, and 
all laws contrary thereto, or to the following provisions, shall be 
void. 


6 


THE CONSTITUTION OF THE STATE OF TEXAS 


ARTICLE II. 

THE POWERS OF GOVERNMENT. 

Sec. i. Departments of Government to Be Kept Dis¬ 
tinct. —The powers of the Government of the State of Texas shall 
be divided into three distinct departments, each of which shall be 
confided to a separate body of magistracy, towit: Those which are 
Legislative to one, those which are Executive to another, and those 
which are Judicial to another; and no person, or collection of per¬ 
sons, being of one of these departments, shall exercise any power 
properly attached to either of the others, except in the instances 
herein expressly permitted. 

ARTICLE III. 

LEGISLATIVE DEPARTMENT. 

Sec. i. The Legislature; House and Senate. —The Legisla¬ 
tive power of this State shall be vested in a Senate and House of 
Representatives, which together shall be styled “The Legislature of 
the State of Texas.” 

Sec. 2. Number of Members Limited. —The Senate shall 
consist of thirty-one members, and shall never be increased above 
this number. The House of Representatives shall consist of ninety- 
three members until the first apportionment after the adoption of 
this Constitution, when or at any apportionment thereafter, the 
number of Representatives may be increased by the Legislature, 
upon the ratio of not more than one Representative for every fif¬ 
teen thousand inhabitants ; provided, the number of Representatives 
shall never exceed one hundred and fifty. 

Sec. 3. Election of Senators; New Apportionment. —The 
Senators shall be chosen by the qualified electors for the term 
of four years; but a new Senate shall be chosen after every appor¬ 
tionment, and the Senators elected after each apportionment shall 
be divided by lot into two classes. The seats of the Senators of 
the first class shall be vacated at the expiration of the first two 
years, and those of the second class at the expiration of four years, 
so that onehalf of the Senators shall be chosen biennially there¬ 
after. 


THE CONSTITUTION OF THE STATE OF TEXAS 


7 


Sec. 4. Election of Representatives; Term of Office.— 
The members of the House of Representatives shall be chosen 
by the qualified electors, and their term of office shall be two years 
from the day of their election. 

Section 5. Time of Meeting; Method of Procedure. —The 
Legislature shall meet every two years at such time as may be pro¬ 
vided by law and at other times when convened by the Governor. 
When convened in regular session, the first thirty days thereof 
shall be devoted to the introduction of bills and resolutions, acting 
upon emergency appropriations, passing upon the confirmation of 
the recess appointees of the Governor and such emergency matters 
as may be submitted by the Governor in special messages to the 
Legislature; provided that during the succeeding thirty days of 
the regular session of the Legislature the various committees of 
each House shall hold hearings to consider all bills and resolutions 
and other matters then pending; and such emergency matters as 
may be submitted by the Governor; provided further that during 
the following sixty days the Legislature shall act upon such bills 
and resolutions as may be then pending and upon such emergency 
matters as may be submitted by the Governor in special messages to 
the Legislature; provided however, either House may otherwise 
determine its order of business by an affirmative vote of four-fifths 
of its membership. 

Sec. 6 . Qualifications of Senators. —No person shall be 
a Senator, unless he be a citizen of the United States, and, at the 
time of his election a qualified elector of this State, and shall have 
been a resident of this State five years next preceding his election, 
and the last year thereof a resident of the district for which he shall 
be chosen, and shall have attained the age of twenty-six years. 

Sec. 7. Qualifications of Representatives. —No person 
shall be a Representative, unless he be a citizen of the United 
States, and, at the time of his election, a qualified elector of this 
State, and shall have been a resident of this State two years next 
preceding his election, the last year thereof a resident of the district 
for which he shall be chosen, and shall have attained the age of 
twenty-one years. 

Sec. 8. Each House to Judge Qualifications of Its Own 
Members. —Each House shall be the judge of the qualifications 


8 


THE CONSTITUTION OF THE STATE OF TEXAS 


and election of its own members; but contested elections shall be 
determined in such manner as shall be provided by law. 

Sec. 9. President Pro Tem. of the Senate; Speaker of 
House ; Officers. —The Senate shall, at the beginning and close 
of each session, and at such other times as may be necessary, 
elect one of its members President pro tempore, who shall perform 
the duties of the Lieutenant Governor in any case of absence or 
disability of that officer, and whenever the said office of Lieutenant 
Governor shall be vacant. The House of Representatives shall, 
when it first assembles, organize temporarily, and thereupon pro¬ 
ceed to the election of a Speaker from its own members; And each 
House shall choose its other officers. 

Sec. 10. Quorum.— Two-thirds of each House shall consti¬ 
tute a quorum to do business, but a smaller number may adjourn 
from day to day, and compel the attendance of absent members, in 
such manner and under such penalties as each House may provide. 

Sec. 11. Rules; Power to Punish and Expel. —Each House 
may determine the rules of its own proceedings, punish members 
for disorderly conduct, and, with the consent of two-thirds, expel 
a member, but not a second time for the same offense. 

Sec. 12. Journal; Yeas and Nays. —Each House shall keep 
a journal of its proceedings, and publish the same; and the yeas and 
nays of the members of either House on any question shall, at the 
desire of any three members present, be entered on the journals. 

Sec. 13. Vacancies, How Filled. —When vacancies occur in 
either House, the Governor, or the person exercising the power 
of the Governor, shall issue writs of election to fill such vacancies; 
and should the Governor fail to issue a writ of election to fill any 
such vacancy within twenty days after it occurs, the returning 
officer of the district in which such vacancy may have happened, 
shall be authorized to order an election for that purpose. 

Sec. 14. Members of Legislature Privileged From Ar¬ 
rest. —Senators and Representatives shall, except in cases of trea¬ 
son, felony, or breach of the peace, be privileged from arrest during 
the session of the Legislature, and in going to and returning from 
the same, allowing one day for every twenty miles such member 
may reside from the place at which the Legislature is convened. 


9 


THE CONSTITUTION OF THE STATE OF TEXAS 

Sec. 15. Each House May Punish Disorderly Conduct. 
—Each House may punish, by imprisonment, during its sessions, 
any person not a member, for disrespectful or disorderly conduct in 
its presence, or for obstructing any of its proceedings; provided, 
such imprisonment shall not, at any one time, exceed forty-eight 
hours. 

Sec. 16. Sessions to Be Open. —The sessions of each House 
shall be open, except the Senate when in Executive session. 

Sec. 17. Adjournments. —Neither House shall, without the 
consent of the other, adjourn for more than three days, nor to any 
other place than that where the Legislature may be sitting. 

Sec. 18. Ineligibility of Members to Certain Offices; 
Not to be Interested in Contracts. —No Senator or Represen¬ 
tative shall, during the term for which he may be elected, be eli¬ 
gible to any civil office of profit under this State, which shall have 
been created, or the emoluments of which may have been in¬ 
creased during such term; no member of either House shall, during 
the term for which he is elected, be eligible to any office or place, 
the appointment to which may be made, in whole or in part, by 
either branch of the Legislature; and no member of either House 
shall vote for any other member for any office whatever, which 
may be filled by a vote of the Legislature, except in such cases as 
are in this Constitution provided. Nor shall any member of the 
Legislature be interested, either directly or indirectly, in any 
contract with the State, or any county thereof, authorized by any 
law passed during the term for which he shall have been elected. 

Sec. 19. What Officers Ineligible to Membership in 
Legislature. —No judge of any Court, Secretary of State, Attor¬ 
ney General, Clerk of any Court of Record, or any person holding 
a lucrative office under the United States, or this State, or any for¬ 
eign government shall during the term for which he is elected or 
appointed, be eligible to the Legislature. 

Sec. 20. Receivers or Disbursers of Public Funds Not 
Eligible to Membership in the Legislature Until Dis¬ 
charge Received. —No person who at any time may have been 
a collector of taxes, or who may have been otherwise entrusted with 
public money, shall be eligible to the Legislature, or to any office 
of profit or trust under the State government, until he shall have 


10 


THE CONSTITUTION OF THE STATE OF TEXAS 


obtained a discharge for the amount of such collections, or for all 
public moneys with which he may have been entrusted. 

Sec. 21. Freedom in Debate. —No member shall be questioned 
in any other place for words spoken in debate in either House. 

Sec. 22. Personal Interest in Measure or Bill. — A mem¬ 
ber who has a personal or private interest in any measure or 
bill, proposed, or pending before the Legislature, shall disclose 
the fact to the House, of which he is a member, and shall not vote 
thereon. 

Sec. 23. Removal Vacates Office. —If any Senator or Rep¬ 
resentative remove his residence from the district or county for 
which he was elected, his office shall thereby become vacant, and the 
vacancy shall be filled as provided in section 13 of this article. 

Sec. 24. Mileage and Per Diem. —Members of the Legis¬ 
lature shall receive from the public Treasury a per diem of not 
exceeding $10.00 per day for the first 120 days of each session and 
after that not exceeding $5.00 per day for the remainder of the 
session. 

In addition to the per diem the members of each House shall be 
entitled to mileage in going to and returning from the seat of 
government, which mileage shall not exceed $2.50 for every 25 
miles, the distance to be computed by the nearest and most direct 
route of travel, from a table of distances prepared by the Comp¬ 
troller to each county seat now or hereafter to be established; no 
member to be entitled to mileage for any extra session that may be 
called within one day after the adjournment of a regular or called 
session. 

Sec. 25. Senatorial Districts, How Apportioned. —The 
State shall be divided into Senatorial Districts of contiguous ter¬ 
ritory according to the number of qualified electors, as nearly 
as may be, and each district shall be entitled to elect one Senator; 
and no single county shall be entitled to more than one Senator. 

Sec. 26. Representative Districts, How Apportioned.— 
The members of the House of Representatives shall be appor¬ 
tioned among the several counties, according to the number of 
population in each, as nearly as may be, on a ratio obtained by di¬ 
viding the population of the State, as ascertained by the most recent 
United States census, by the number of members of which the 


THE CONSTITUTION OF THE STATE OF TEXAS 


11 


House is composed; provided, that whenever a single county has 
sufficient population to be entitled to a Representative, such county 
shall be formed into a separate Representative District, and when 
two or more counties are required to make up the ratio of represen¬ 
tation, such counties shall be contiguous to each other; and when 
any one county has more than sufficient population to be entitled 
to one or more representatives, such representative or representa¬ 
tives shall be apportioned to such county, and for any surplus of 
population it may be joined in a Representative District with any 
other contiguous county or counties. 

Sec. 27. Election of Members. —Elections for Senators and 
Representatives shall be general throughout the State, and shall be 
regulated by law. 

Sec. 28. Reapportionment at Each Census.— The Legis¬ 
lature shall, at its first session after the publication of each United 
States decennial census, apportion the State into Senatorial and 
Representative districts, agreeably to the provisions of Sec’s 25 and 
26 of this Article; and until the next decennial census, when the 
first apportionment shall be made by the Legislature, the State 
shall be, and it is hereby divided into Senatorial and Representa¬ 
tive districts as provided by an Ordinance of the Convention on 
that subject. 


PROCEEDINGS. 

Sec. 29. Enacting Clause.— The enacting clause of all laws 
shall be: “Be it enacted by the Legislature of the State of Texas.” 

Sec. 30. Laws to Be Passed by Bill; Amendments.— No 
law shall be passed, except by bill, and no bill shall be so amended 
in its passage through either House, as to change its original 
purpose. 

Sec. 31. Bills May Originate in Either House and May be 
Amended or Rejected by the Other House.— Bills may origi¬ 
nate in either House, and, when passed by such House, may be 
amended altered or rejected by the other. 

Sec. 32. Bills to Be Read on Three Several Days; Sus¬ 
pension of Rule.— No bill shall have the force of a law, until 
it has been read on three several days in each House, and free 
discussion allowed thereon; but in cases of imperative public neces- 


12 THE CONSTITUTION OF THE STATE OF TEXAS 


sity (which necessity shall be stated in a preamble or in the body of 
the bill) four-fifths of the House, in which the bill may be pending, 
may suspend this rule, the yeas and nays being taken on the ques¬ 
tion of suspension and entered upon the journals. 

Sec. 33. Bills for Raising Revenue.— All bills for raising 
revenue shall originate in the House of Representatives, but the 
Senate may amend or reject them as other bills. 

Sec. 34. Bill or Resolution Defeated, Not to Be Con¬ 
sidered Again.— After a bill has been considered and defeated 
by either House of the Legislature, no bill containing the same sub¬ 
stance shall be passed into a law during the same session. After 
a resolution has been acted on and defeated, no resolution contain¬ 
ing the same substance, shall be considered at the same session. 

Sec. 35. Bills to Contain But One Subject, Which Must 
Be Expressed in Title. —No bill, (except general appropria¬ 
tion bills, which may embrace the various subjects and accounts, 
for and on account of which moneys are appropriated) shall con¬ 
tain more than one subject, which shall be expressed in its title. But 
if any subject shall be embraced in an act, which shall not be ex¬ 
pressed in the title, such act shall be void only as to so much 
thereof, as shall not be so expressed. 

Sec. 36. Reviving or Amending Laws. —No law shall be re¬ 
vived or amended by reference to its title; but in such case the 
act revived, or the section or sections amended, shall be re-enacted 
and published at length. 

Sec. 37. Reference to Committees. —No bill shall be con¬ 
sidered, unless it has been first referred to a committee and re¬ 
ported thereon, and no bill shall be passed which has not been pre¬ 
sented and referred to and reported from a Committee at least 
three days before the final adjournment of the Legislature. 

Sec. 38. Signing Bills. —The presiding officer of each House 
shall, in the presence of the House over which he presides, sign 
all bills and joint resolutions passed by the Legislature, after 
their titles have been publicly read before signing; and the fact of 
signing shall be entered on the journals. 

Sec. 39. When Laws Take Effect.— No law passed by the 
Legislature, except the general appropriation act, shall take ef- 


13 


THE CONSTITUTION OF THE STATE OF TEXAS 

feet or go into force until ninety days after the adjournment of 
the session at which it was enacted, unless in case of an emergency, 
which emergency must be expressed in a preamble or in the body 
of the act, the Legislature shall, by a vote of two-thirds of all the 
members elected to each House, otherwise direct; said vote to be 
taken by yeas and nays, and entered upon the journals. 

Sec. 40. Business and Duration of Special Sessions.— 
When the Legislature shall be convened in special session, there 
shall be no legislation upon subjects other than those designated in 
the proclamation of the Governor calling such session, or pre¬ 
sented to them by the Governor; and no such session shall be of 
longer duration than thirty days. 

Sec. 41. Elections; Votes, How Taken. —In all elections by 
the Senate and House of Representatives, jointly or separately, 
the vote shall be given viva voce, except in the election of their 
officers. 


REQUIREMENTS AND LIMITATIONS. 

Sec. 42. To Pass Necessary Laws. —The Legislature shall 
pass such laws as may be necessary to carry into effect the pro¬ 
visions of this Constitution. 

Sec. 43. Revision and Publication of Laws. —The first ses¬ 
sion of the Legislature under the Constitution shall provide for 
revising, digesting and publishing the laws, civil and criminal; and 
a like revision, digest and publication may be made every ten years 
thereafter; provided, that in the adoption of and giving effect to 
any such digest or revision, the Legislature shall not be limited by 
sections 35 and 36 of this Article. 

Sec. 44. Compensation of Officers; Payment of Claims. 
—The Legislature shall provide by law for the compensation 
of all officers, servants, agents and public contractors, not pro¬ 
vided for in this Constitution, but shall not grant extra compensa¬ 
tion to any officer, agent, servant, or public contractors, after such 
public service shall have been performed or contract entered into, 
for the performance of the same; nor grant, by appropriation or 
otherwise, any amount of money out of the Treasury of the State, 
to any individual, on a claim, real or pretended, when the same 
shall not have been provided for by pre-existing law; nor employ 


14 THE CONSTITUTION OF THE STATE OF TEXAS 

anyone in the name of the State, unless authorized by pre-existing 
law. 

Sec. 45. Change of Venue. —The power to change the venue 
in civil and criminal cases shall be vested in the courts, to be exer¬ 
cised in such manner as shall be provided by law; and the Legisla¬ 
ture shall pass laws for that purpose. 

Sec. 46. Legislature Shall Enact Vagrant Laws. —The 
Legislature shall, at its first session after the adoption of this Con¬ 
stitution, enact effective vagrant laws. 

Sec. 47. Lotteries Shall Be Prohibited.— The Legislature 
shall pass laws prohibiting the establishment of lotteries and gift 
enterprises in this State, as well as the sale of tickets in lotteries, 
gift enterprises or other evasions involving the lottery principle, 
established or existing in other States. 

Sec. 48. Power to Levy Taxes Limited.— The Legislature 
shall not have the right to levy taxes or impose burdens upon the 
people, except to raise revenue sufficient for the economical ad¬ 
ministration of the government, in which may be included the fol¬ 
lowing purposes: 

The payment of all interest upon the bonded debt of the State: 

The erection and repairs of Public Buildings: 

The benefit of the sinking fund, which shall not be more than 
two per centum of the public debt; and for the payment of the 
present floating debt of the State, including matured bonds for the 
payment of which the sinking fund is inadequate. 

The support of public schools, in which shall be included col¬ 
leges and universities established by the State; and the mainte¬ 
nance and support of the Agricultural and Mechanical college of 
Texas. 

The payment of the cost of assessing and collecting the revenue; 
and the payment of all officers, agents and employees of the State 
Government, and all incidental expenses connected therewith. 

The support of the Blind Asylum, the Deaf and Dumb Asylum, 
and the Insane Asylum; the State Cemetery and the public grpunds 
of the State: 

The enforcement of quarantine regulations on the coast of 
Texas: 

The protection of the frontier: 


THE CONSTITUTION OF THE STATE OF TEXAS 15 

Sec. 49. Purpose for Which Debts May Be Created.—No 
debt shall be created by or on behalf of the State, except to sup¬ 
ply casual deficiencies of revenue, repel invasion, suppress insur¬ 
rection, defend the State in war, or pay existing debt; and the debt 
created to supply deficiencies in the revenue, shall never exceed in 
the aggregate at any one time two hundred thousand dollars. 

Sec. 50. Credit of State Not to Be Pledged.— The Legisla¬ 
ture shall have no power to give or to lend, or to authorize the 
giving or lending, of the credit of the State in aid of, or to any 
person, association or corporation, whether municipal or other, or 
to pledge the credit of the State in any manner whatsoever, for 
the payment of the liabilities, present or prospective, of any indi- 
divual, association of individuals, municipal or other corporation 
whatsoever. 

Section 51. Tax Levy Authorized for Confederate Soldiers 
and Sailors and Their Widows. —The Legislature shall have 
no power to make any grant or authorize the making of any grant 
of public moneys to any individual, association of individuals, mu¬ 
nicipal or other corporations whatsoever; provided, however, the 
Legislature may grant aid to indigent and disabled Confederate 
soldiers and sailors under such regulations and limitations as may 
be deemed by the Legislature as expedient, and to their widows in 
indigent circumstances under such regulations and limitations as 
may be deemed by the Legislature as expedient; to indigent and 
disabled soldiers, who, under special laws of the State of Texas, 
during the war between the States, served in organizations for the 
protection of the frontier against Indian raids or Mexican ma¬ 
rauders, and to indigent and disabled soldiers of the militia who 
were in active service during the war between the States, and to the 
widows of such soldiers who are in indigent circumstances, and 
who are or may be eligible to receive aid under such regulations 
and limitations as may be deemed by the Legislature as expedient ; 
and also grant for the establishment and maintenance of a home 
for said soldiers and sailors, their wives and widows and women 
who aided in the Confederacy, under such regulations and limita¬ 
tions as may be provided for by law; provided the Legislature may 
provide for husband and wife to remain together in the home. 
There is hereby levied in addition to all other taxes heretofore per¬ 
mitted by the Constitution of Texas, a State ad valorem tax on 
property of seven ($.07) cents on the one hundred ($100) dollars 


16 THE CONSTITUTION OF THE STATE OF TEXAS 


valuation for the purpose of creating a special fund for the pay¬ 
ment of pensions for services in the Confederate army and navy, 
frontier organizations and the militia of the State of Texas, and 
for the widows of such soldiers serving in said armies, navies, or¬ 
ganizations or militia; provided that the Legislature may reduce 
the tax rate herein levied, and provided further, that the provisions 
of this section shall not be construed so as to prevent the grant of 
aid in cases of public calamity. 

Section 51a. The Legislature shall have power to authorize by 
law the issuance and sale of the bonds of the State of Texas, not 
to exceed the sum of Twenty Million ($20,000,000.00) Dollars, 
bearing interest at a rate not to exceed Four and one-half ( 4 i%) 
per centum per annum; and payable serially or otherwise not more 
than Ten (10) years from their date, and said bonds shall be sold 
for not less than par and accrued interest and no form of com¬ 
mission shall be allowed in any transaction involving said bonds. 
The proceeds of the sale of such bonds to be used in furnishing 
relief and work relief to needy and distressed people and in re¬ 
lieving the hardships resulting from unemployment, but to be fairly 
distributed over the State and upon such terms and conditions as 
may be provided by law and the Legislature shall make such ap¬ 
propriations as are necessary to pay the interest and principal of 
such bonds as the same becomes due. The power hereby granted 
to the Legislature to issue bonds hereunder is expressly limited 
to the amount stated and to two years from and after the adoption 
of this grant of power by the people. Provided that the Legislature 
shall provide for the payment of the interest and redemption of 
any bonds issued under the terms hereof from some source other 
than a tax on real property and the indebtedness as evidenced by 
such bonds shall never become a charge against or lien upon any 
property, real or personal, within this State. 

Section 52. Counties, Cities, Etc., Not to Be Authorized to 
Grant Money or to Become Stockholders. —The legislature 
shall have no power to authorize any County, City, town or other 
political Corporation or Subdivision of the State to lend its credit 
or to grant public money or thing of vatue in aid of, or to any in¬ 
dividual, association or corporation whatsoever, or to become a 
Stockholder in such Corporation, association or company; pro¬ 
vided, however, that under legislative provision any County, any 
Political Subdivision of a County, any number of adjoining Coun¬ 
ties, or any political Subdivision of the State, or any defined dis- 


THE CONSTITUTION OF THE STATE OF TEXAS 


17 


trict now or hereafter to be described and defined within the State 
of Texas, and which may or may not include, towns, villages or 
municipal Corporations, upon a vote of a two thirds majority of 
the resident property tax payers voting thereon who are qualified 
electors of such district or territory to be affected thereby, in ad¬ 
dition to all other debts, may issue bonds or otherwise lend its 
credit in any amount not to exceed one-fourth of the assessed 
valuation of the real property of such district or territory, except 
that the total bonded indebtedness of any city or town shall never 
exceed the limits imposed by other provisions of this Constitution, 
and levy and collect such taxes to pay the interest thereon and pro¬ 
vide a sinking fund for the redemption thereof, as the legislature 
may authorize, and in such manner as it may authorize the same, 
for the following purposes towit: 

(a) The improvement of rivers, creeks, and streams to prevent 
overflows, and to permit of navigation thereof or irrigation thereof, 
or in aid of such purposes. 

(b) The construction and maintenance of pools, lakes, reser¬ 
voirs, dams, canals and water ways for the purposes of irrigation, 
drainage or navigation, or in aid thereof. 

(c) The construction, maintenance and operation of macad¬ 
amized, graveled or paved roads and turnpikes, or in aid thereof. 

Sec. 53. Extra Compensation by Municipal Corporations. 
—The Legislature shall have no power to grant, or to authorize 
any county or municipal authority to grant, any extra compensa¬ 
tion, fee or allowance to a public officer, agent, servant or con¬ 
tractor, after service has been rendered, or a contract has been 
entered into, and performed in whole or in part; nor pay, nor au¬ 
thorize the payment of, any claim created against any county or 
municipality of the State, under any agreement or contract, made 
without authority of law. 

Sec. 54. Liens on Railroads. —The Legislature shall have no 
power to release or alienate any lien held by the State upon any 
railroad, or in anywise change the tenor or meaning, or pass any 
act explanatory thereof; but the same shall be enforced in accord¬ 
ance with the original terms upon which it was acquired. 

Section 55. Legislature Has No Power to Release Debts.— 
The Legislature shall have no power to release or extinguish, or to 
authorize the releasing or extinguishing, in whole or in part, the 
indebtedness, liability or obligation of any corporation or indi- 


18 


THE CONSTITUTION OF THE STATE OF TEXAS 


vidual, to this State or to any county or defined subdivision thereof, 
or other municipal corporation therein, except delinquent taxes 
which have been due for a period of at least ten years. 

Sec. 56. Local and Special Laws. —The Legislature shall not, 
except as otherwise provided in this Constitution, pass any local 
or special law, authorizing: 

The creation, extension or impairing of liens: 

Regulating the affairs of counties, cities, towns, wards or school 
districts: 

Changing the names of persons or places: 

Changing the venue in civil or criminal cases: 

Authorizing the laying out, opening, altering or maintaining of 
roads, highways, streets or alleys: 

Relating to ferries or bridges, or incorporating ferry or bridge 
companies, except for the erection of bridges crossing streams 
which form boundaries between this and any other State: 

Vacating roads, town plats, streets or alleys: 

Relating to cemeteries, grave-yards or public grounds not of the 
State: 

Authorizing the adoption or legitimation of children: 

Locating or changing county seats: 

Incorporating cities, towns or villages, or changing their char¬ 
ters : 

For the opening and conducting of elections, or fixing or chang¬ 
ing the places of voting: 

Granting divorces: 

Creating offices, or prescribing the powers and duties of offi¬ 
cers, in counties, cities, towns, election or school districts: 

Changing the law of descent or succession: 

Regulating the practice or jurisdiction of, or changing the rules 
of evidence in any judicial proceeding or inquiry before courts, 
justices of the peace, sheriffs, commissioners, arbitrators or other 
tribunals, or providing or changing methods for the collection of 
debts, or the enforcing of judgments, or prescribing the effect of 
judicial sales of real estate: 

Regulating the fees, or extending the powers and duties of al¬ 
dermen, justices of the peace, magistrates or constables: 

Regulating the management of public schools, the building or 
repairing of schoolhouses, and the raising of money for such 
purposes: 


THE CONSTITUTION OF THE STATE OF TEXAS 


19 


Fixing the rate of interest: 

Affecting the estates of minors, or persons under disability: 

Remitting fines, penalties and forfeitures, and refunding mon¬ 
eys legally paid into the treasury: 

Exempting property from taxation: 

Regulating labor, trade, mining and manufacturing: 

Declaring any named person of age: 

Extending the time for the assessment or collection of taxes, or 
otherwise relieving any assessor or collector of taxes from the due 
performance of his official duties, or his securities from liability: 

Giving effect to informal or invalid wills or deeds: 

Summoning or impaneling grand or petit juries: 

For limitation of civil or criminal actions: 

For incorporating railroads or other works of internal improve¬ 
ments : 

And in all other cases where a general law can be made applica¬ 
ble, no local or special law shall be enacted; provided, that nothing 
herein contained shall be construed to prohibit the Legislature 
from passing special laws for the preservation of the game and 
fish of this State in certain localities. 

Sec. 57. Notice of Local or Special Laws. —No local or spe¬ 
cial law shall be passed, unless notice of the intention to apply 
therefor shall have been published in the locality where the matter 
or thing to be affected may be situated, which notice shall state the 
substance of the contemplated law, and shall be published at least 
thirty days prior to the introduction into the Legislature of such 
bill and in the manner to be provided by law. The evidence of such 
notice having been published, shall be exhibited in the Legisla¬ 
ture, before such act shall be passed. 

Sec. 58. Sessions to Be Held at Austin, Seat of Govern¬ 
ment. —The Legislature shall hold its sessions at the City of 
Austin, which is hereby declared to be the seat of government. 

ARTICLE IV. 

EXECUTIVE DEPARTMENT. 

Sec. 1. Officers of Executive Department. —The Execu¬ 
tive Department of the State shall consist of a Governor, who 
shall be the Chief Executive Officer of the State, a Lieutenant Gov- 


20 THE CONSTITUTION OF THE STATE OF TEXAS 

ernor, Secretary of State, Comptroller of Public Accounts, Treas¬ 
urer, Commissioner of the General Land Office and Attorney 
General. 

Sec. 2. Election of Executive Officers. —All the above of¬ 
ficers of the Executive Department (except Secretary of State) 
shall be elected by the qualified voters of the State at the time and 
places of election for members of the Legislature. 

Sec. 3. Election Results; Ties; Contests. —The returns of 
every election for said Executive Officers, until otherwise pro¬ 
vided by law, shall be made out, sealed up, and transmitted by the 
returning officers prescribed by law, to the seat of Government, 
directed to the Secretary of State, who shall deliver the same to 
the Speaker of the House of Representatives, as soon as the 
Speaker shall be chosen, and the said Speaker shall, during the 
first week of the session of the Legislature, open and publish them 
in the presence of both Houses of the Legislature. The person, 
voted for at said election, having the highest number of votes for 
each of said offices respectively, and being constitutionally eligible, 
shall be declared by the Speaker, under sanction of the Legislature, 
to be elected to said office. But, if two or more persons shall have 
the highest and an equal number of votes for either of said offices, 
one of them shall be immediately chosen to such office by joint 
vote of both Houses of the Legislature. Contested elections for 
either of said offices, shall be determined by both Houses of the 
Legislature in joint session. 

Sec. 4. Governor, When Installed; Term; Qualifica¬ 
tions. —The Governor shall be installed on the first Tuesday after 
the organization of the Legislature, or as soon thereafter as prac¬ 
ticable, and shall hold his office for the term of two years, or until 
his successor shall be duly installed. He shall be at least thirty 
years of age, a citizen of the United States, and shall have resided 
in this State at least five years immediately preceding his election. 

Sec. 5. Governor’s Salary and Mansion.— He shall, at 
stated times, receive as compensation for his services an annual 
salary of four thousand dollars and no more, and shall have the 
use and occupation of the Governor’s mansion, fixtures and fur¬ 
niture. 

Sec. 6. Governor to Hold No Other Office, Etc. —During 
the time he holds the office of Governor, he shall not hold any other 


21 


THE CONSTITUTION OF THE STATE OF TEXAS 

office: civil, military or corporate; nor shall he practice any pro¬ 
fession, and receive compensation, reward, fee, or the promise 
thereof for the same; nor receive any salary, reward or compensa¬ 
tion or the promise thereof from any person or corporation, for 
any service rendered or performed during the time he is Governor, 
or to be thereafter rendered or performed. 

Sec. 7. Commander-in-Chief; May Call Out Militia.— 
He shall be Commander-in-Chief of the military forces of the 
State, except when they are called into actual service of the United 
States. He shall have power to call forth the militia to execute the 
laws of the State, to suppress insurrections, repel invasions, and 
protect the frontier' from hostile incursions by Indians or other 
predatory bands. 

Sec. 8. Governor May Convene Legislature. —The Gov¬ 
ernor may, on extraordinary occasions, convene the Legislature 
at the seat of Government, or at a different place, in case that 
should be in possession of the public enemy or in case of the preva¬ 
lence of disease thereat. His proclamation therefor shall state spe¬ 
cifically the purpose for which the Legislature is convened. 

Sec. 9. Governor’s Message; to Account for Moneys; 
Present Estimates, Etc. —The Governor shall, at the com¬ 
mencement of each session of the Legislature, and at the close of 
his term of office, give to the Legislature information, by message, 
of the condition of the State; and he shall recommend to the 
Legislature such measures as he may deem expedient. He shall 
account to the Legislature for all public moneys received and paid 
out by him, from any funds subject to his order, with vouchers; 
and shall accompany his message with a statement of the same. 
And at the commencement of each regular session, he shall present 
estimates of the amount of money required to be raised by taxation 
for all purposes. 

Sec. 10. Governor Shall Cause the Laws to Be Exe¬ 
cuted; Intercourse with Other States. —He shall cause the 
laws to be faithfully executed and shall conduct, in person, or in 
such manner as shall be prescribed by law, all intercourse and 
business of the State with other States and with the United States. 

Sec. 11. Governor May Issue Pardons, Remit Fines, Etc. 
—In all criminal cases, except treason and impeachment, he shall 


22 


THE CONSTITUTION OF THE STATE OF TEXAS 


have power after conviction, to grant reprieves, commutations of 
punishment and pardons; and under such rules as the Legislature 
may prescribe, he shall have power to remit fines and forfeitures. 
With the advice and consent of the Senate, he may grant pardons 
in cases of treason, and to this end he may respite a sentence 
therefor, until the close of the succeeding session of the Legisla¬ 
ture; provided, that in all cases of remissions of fines and for¬ 
feitures, or grants of reprieve, commutation of punishment or 
pardon, he shall file in the office of the Secretary of State his 
reasons therefor. 

Sec. 12. Governor to Fill Vacancies in State and Dis¬ 
trict Offices. —All vacancies in State or District Offices, except 
members of the Legislature, shall be filled unless otherwise pro¬ 
vided by law, by appointment of the Governor, which appointment, 
if made during its session, shall be with the advice and consent of 
two-thirds of the Senate present. If made during the recess of the 
Senate, the said appointee, or some other person to fill such va¬ 
cancy, shall be nominated to the Senate during the first ten days 
of its session. If rejected, said office shall immediately become 
vacant, and the Governor shall, without delay, make further nomi¬ 
nations, until a confirmation takes place. But should there be no 
confirmation during the session of the Senate, the Governor shall 
not thereafter appoint any person to fill such vacancy who has been 
rejected by the Senate; but may appoint some other person to fill 
the vacancy until the next session of the Senate or until the regu¬ 
lar election to said office, should it sooner occur. Appointments to 
vacancies in offices elective by the people shall only continue until 
the first general election thereafter. 

Sec. 13. Where Governor Shall Reside. —During the ses¬ 
sion of the Legislature the Governor shall reside where its sessions 
are held and at all other times at the seat of government, except 
when by act of the Legislature, he may be required or authorized to 
reside elsewhere. 

Sec. 14. Approval of Bills; Veto Bill Not Returned to 
Become a Law. —Every bill which shall have passed both houses 
of the Legislature shall be presented to the Governor for his ap¬ 
proval. If he approve he shall sign it; but if he disapprove it, he 
shall return it, with his objections, to the House in which it origi¬ 
nated, which House shall enter the objections at large upon its 
journal, and proceed to reconsider it. If after such reconsidera- 


THE CONSTITUTION OF THE STATE OF TEXAS 


23 


tion, two-thirds of the members present agree to pass the bill, it 
shall be sent, with the objections, to the other House, by which 
likewise it shall be reconsidered; and, if approved by two-thirds of 
the members of that House, it shall become a law; but in such 
cases the votes of both Houses shall be determined by yeas and 
nays, and the names of the members voting for and against the 
bill shall be entered on the journal of each House respectively. If 
any bill shall not be returned by the Governor with his objections 
within ten days (Sundays excepted) after it shall have been pre¬ 
sented to him, the same shall be a law, in like manner as if he had 
signed it, unless the Legislature, by its adjournment, prevent its 
return, in which case it shall be a law, unless he shall file the same, 
with his objections, in the office of the Secretary of State and give 
notice thereof by public proclamation within twenty days after 
such adjournment. If any bill presented to the Governor contains 
several items of appropriation he may object to one or more of 
such items, and approve the other portion of the bill. In such case 
he shall append to the Bill, at the time of signing it, a statement 
of the items to which he objects, and no item so objected to shall 
take effect. If the Legislature be in session, he shall transmit to 
the House in which the bill originated a copy of such statement and 
the items objected to shall be separately considered. If, on recon¬ 
sideration, one or more of such items be approved by two-thirds of 
the members present of each House, the same shall be part of the 
law, notwithstanding the objections of the Governor. If any such 
bill, containing several items of appropriation, not having been 
presented to the Governor ten days (Sundays excepted) prior to 
adjournment, be in the hands of the Governor at the time of ad¬ 
journment, he shall have twenty days from such adjournment 
within which to file objections to any items thereof and make 
proclamation of the same, and such item or items shall not take 
effect. 

Sec. 15. What to Be Presented for Approval.— Every or¬ 
der, resolution or vote to which the concurrence of both Houses 
of the Legislature may be necessary, except on questions of ad¬ 
journment, shall be presented to the Governor, and, before it shall 
take effect, shall be approved by him; or, being disapproved, shall 
be repassed by both Houses, and all the rules, provisions and limi¬ 
tations shall apply thereto as prescribed in the last preceding sec¬ 
tion in the case of a bill. 


24 


THE CONSTITUTION OF THE STATE OF TEXAS 


Sec. 16. Lieutenant Governor; Election; Term; Powers 
and Duties. —There shall also be a Lieutenant Governor, who 
shall be chosen at every election for Governor by the same electors, 
in the same manner, continue in office for the same time, and pos¬ 
sess the same qualifications. The electors shall distinguish for whom 
they vote as Governor and for whom as Lieutenant Governor. The 
Lieutenant Governor, shall by virtue of his office, be President of 
the Senate, and shall have, when in Committee of the Whole, a 
right to debate and vote on all questions; and when the Senate is 
equally divided to give the casting vote. In case of the death, resig¬ 
nation, removal from office, inability or refusal of the Governor to 
serve, or of his impeachment or absence from the State, the Lieu¬ 
tenant Governor shall exercise the powers and authority apper¬ 
taining to the office of Governor until another be chosen at the 
periodical election, and be duly qualified; or until the Governor 
impeached, absent or disabled, shall be acquitted, return, or his 
disability be removed. 

Sec. 17. Vacancy in Office; Compensation. —If, during the 
vacancy in the office of Governor, the Lieutenant Governor should 
die, resign, refuse to serve, or be removed from office, or be un¬ 
able to serve; or if he shall be impeached or absent from the State, 
the President of the Senate, for the time being, shall, in like man¬ 
ner, administer the Government until he shall be superseded by a 
Governor or Lieutenant Governor. The Lieutenant Governor shall, 
while he acts as President of the Senate, receive for his services 
the same compensation and mileage which shall be allowed to the 
members of the Senate, and no more; and during the time he ad¬ 
ministers the Government, as Governor, he shall receive in like 
manner the same compensation which the Governor would have 
received had he been employed in the duties of his office, and no 
more. The President, for the time being, of the Senate, shall, dur¬ 
ing the time he administers the Government, receive in like man¬ 
ner the same compensation, which the Governor would have re¬ 
ceived had he been employed in the duties of his office. 

Sec. 18. Succession to Governorship. —The Lieutenant Gov¬ 
ernor or President of the Senate succeeding to the office of 
Governor, shall, during the entire term to which he may succeed, 
be under all the restrictions and inhibitions imposed in this Con¬ 
stitution on the Governor. 


THE CONSTITUTION OF THE STATE OF TEXAS 


25 


Sec. 19. Seal of State ; Secretary of State to Keep, Etc. 
—There shall be a Seal of the State which shall be kept by the 
Secretary of State, and used by him officially under the direction 
of the Governor. The Seal of the State shall be a star of five points 
encircled by olive and live oak branches, and the words “The State 
of Texas.” 

Sec. 20. Commissions to Be Signed and Sealed. —All com¬ 
missions shall be in the name and by the authority of the State of 
Texas, sealed with the State seal, signed by the Governor and at¬ 
tested by the Secretary of State. 

Sec. 21. Secretary of State; Term; Duties; Compensa¬ 
tion.— There shall be a Secretary of State, who shall be appointed 
by the Governor, by and with the advice and consent of the Sen¬ 
ate, and who shall continue in office during the term of service of 
the Governor. He shall authenticate the publication of the laws, 
and keep a fair register of all official acts and proceedings of the 
Governor, and shall, when required, lay the same and all papers, 
minutes and vouchers relative thereto, before the Legislature, or 
either House thereof, and shall perform such other duties as may 
be required of him by law. He shall receive for his services an 
annual salary of two thousand dollars and no more. 

Sec. 22. Attorney General; Term; Duties; Residence; 
Salary.— The Attorney General shall hold his office for two years 
and until his successor is duly qualified. He shall represent the 
State in all suits and pleas in the Supreme Court of the State in 
which the State may be a party, and shall especially inquire into 
the charter rights of all Private Corporations, and, from time to 
time, in the name of the State, take such action in the courts as 
may be proper and necessary to prevent any Private Corporation 
from exercising any power or demanding or collecting any species 
of taxes, tolls, freight or wharfage, not authorized by law. He 
shall, whenever sufficient cause exists, seek a judicial forfeiture 
of such charters, unless otherwise expressly directed by law, and 
give legal advice in writing to the Governor and other executive 
officers, when requested by them, and perform such other duties 
as may be required by law. He shall reside at the seat of the Gov¬ 
ernment during his continuance in office. He shall receive for his 
services an annual salary of two thousand dollars, and no more, 
besides such fees as may be prescribed by law; provided, that the 


26 


THE CONSTITUTION OF THE STATE OF TEXAS 


fees which he may receive shall not amount to more than two 
thousand dollars annually. 

Sec. 23. Comptroller, Treasurer, and Commissioner of the 
General Land Office; Terms; Salaries; Residence; Fees. 
—The Comptroller of Public Accounts, the Treasurer and the 
Commissioner of the General Land Office shall each hold office for 
the term of two years, and until his successor is qualified; receive 
an annual salary of two thousand and five hundred dollars, and no 
more; reside at the Capital of the State during his continuance in 
office, and perform such duties as are or may be required of him 
by law. They and the Secretary of State shall not receive to their 
own use any fees, costs or perquisites of office. All fees that may 
be payable by law for any service performed by any officer speci¬ 
fied in this section, or in his office, shall be paid, when received, 
into the State Treasury. 

Sec. 24. Officers to Account to the Governor; Duty of 
Governor; False Reports. —An account shall be kept by the offi¬ 
cers of the Executive Department, and by all officers and managers 
of State institutions, of all moneys and choses in action received 
and disbursed or otherwise disposed of by them, severally, from 
all sources, and for every service performed; and a semi-annual 
report thereof shall be made to the Governor under oath. The 
Governor may, at any time, require information in writing from 
any and all of said officers or managers, upon any subject relating 
to the duties, condition, management and expenses of their respec¬ 
tive offices and institutions, which information shall be required 
by the Governor under oath, and the Governor may also inspect 
their books, accounts, vouchers and public funds; and any officer 
or manager who, at any time, shall wilfully make a false report or 
give false information, shall be guilty of perjury, and so adjudged, 
and punished accordingly, and removed from office. 

Sec. 25. Laws for Investigation of Breaches of Trust.— 
The Legislature shall pass efficient laws facilitating the investiga¬ 
tion of breaches of trust and duty by all custodians of public funds 
and providing for their suspension from office on reasonable cause 
shown, and for the appointment of temporary incumbents of their 
offices during such suspension. 

Sec. 26. Notaries Public. —The Governor, by and with the ad¬ 
vice and consent of two-thirds of the Senate, shall appoint a con- 



THE CONSTITUTION OF THE STATE OF TEXAS 27 

venient number of Notaries Public for each county who shall per¬ 
form such duties as now are or may be prescribed by law. 


ARTICLE V. 

JUDICIAL DEPARTMENT. 

Section i. The Several Courts; Criminal Courts. —The 
judicial power of this State shall be vested in one Supreme Court, 
in Courts of Civil Appeals, in a Court of Criminal Appeals, in dis¬ 
trict Courts, in County Courts, in Commissioners Courts, in Courts 
of justices of the peace, and in such other courts as may be pro¬ 
vided by law. 

The criminal district court of Galveston and Harris Counties 
shall continue with the district jurisdiction and organization now 
existing by law until otherwise provided by law. 

The legislature may establish such other Courts as it may deem 
necessary and prescribe the jurisdiction and organization thereof, 
and may conform the jurisdiction of the district and other inferior 
courts thereto. 

Section 2. Supreme Court ; Quorum ; Qualifications ; Elec¬ 
tion ; Salary ; Vacancy.— The Supreme Court shall consist of a 
chief Justice and two associate Justices, any two of whom shall 
constitute a quorum, and the concurrence of two Judges shall be 
necessary to the decision of a case. No person shall be eligible to 
the office of Chief Justice or associate Justice of the Supreme 
Court unless he be, at the time of his election, a citizen of the 
United States and of this State and unless he shall have attained 
the age of thirty years, and shall have been a practicing lawyer or 
a judge of a Court, or such lawyer and Judge together, at least 
seven years. Said Chief Justice and associate Justices shall be 
elected by the qualified voters of the state at a general election, shall 
hold their offices six years, or until their successors are elected and 
qualified, and shall each receive an annual salary of four thousand 
dollars until otherwise provided by law. In case of a vacancy in 
the office of the Chief Justice of the Supreme Court the Governor 
shall fill the vacancy until the next general election for State 
officers, and at such general election the vacancy for the unex¬ 
pired term shall be filled by election by the qualified voters of the 
state. The Judges of the Supreme Court who may be in office at 


28 


THE CONSTITUTION OF THE STATE OF TEXAS 


the time this amendment takes effect shall continue in office until 
the expiration of their term of office under the present Constitution, 
and until their successors are elected and qualified. 

Section 3. Jurisdiction; Terms of Court. —The Supreme 
Court shall have appellate jurisdiction only except as herein speci¬ 
fied, which shall be coextensive with the limits of the State. Its 
appellate jurisdiction shall extend to questions of law arising in 
cases of which the courts of civil appeals have appellate jurisdiction 
under such restrictions and regulations as the legislature may pre¬ 
scribe. Until otherwise provided by law the appellate jurisdiction of 
the Supreme Court shall extend to questions of law arising in the 
cases in the Courts of Civil Appeals in which the judges of any 
Court of civil appeals may disagree, or where the several Courts of 
civil appeals may hold differently on the same question of law or 
where a statute of the State is held void. The Supreme Court and 
the Justices thereof shall have power to issue writs of habeas cor¬ 
pus, as may be prescribed by law, and under such regulations as may 
be prescribed by law, the said Courts and the Justices thereof may 
issue the writs of mandamus, procedendo, certiorari and such other 
writs, as may be necessary to enforce its jurisdiction. The legis¬ 
lature may confer original jurisdiction on the Supreme Court to 
issue writs of quo warranto and mandamus in such cases as may 
be specified, except as against the Governor of the State. 

The Supreme Court shall also have power, upon affidavit or 
otherwise as by the court may be determined, to ascertain such 
matters of fact as may be necessary to the proper exercise of its 
jurisdiction. 

The Supreme Court shall appoint a clerk, who shall give bond 
in such manner as is now or may hereafter, be required by law, 
and he may hold his office for four years and shall be subject to 
removal by said Court for good cause entered of record on the 
minutes of said Court who shall receive such compensation as the 
legislature may provide. 

Section 3a. The Supreme Court may sit at any time during the 
year at the seat of government for the transaction of business and 
each term thereof shall begin and end with each calendar year. 

Section 4. Court of Criminal Appeals. —The Court of Crimi¬ 
nal appeals shall consist of three judges, any two of whom shall 
constitute a quorum, and the concurrence of two judges shall be 


29 


THE CONSTITUTION OF THE STATE OF TEXAS 

necessary to a decision of said Court, said judges shall have the 
same qualifications and receive the same salaries as the judges of 
the Supreme Court. They shall be elected by the qualified voters 
of the State at a general election and shall hold their offices for a 
term of six years. In case of a vacancy in the office of a judge of 
the Court of Criminal Appeals, the Governor shall fill such va¬ 
cancy by appointment for the unexpired term. 

The judges of the Court of appeals who may be in office at the 
time when this amendment takes effect shall continue in office until 
the expiration of their term of office under the present Constitution 
and laws as judges of the Court of Criminal Appeals. 

Sec. 5. Jurisdiction; Powers; Term; Clerk, Etc. —The 
Court of Criminal appeals shall have appellate jurisdiction coex¬ 
tensive with the limits of the State in all criminal cases of what¬ 
ever grade, with such exceptions and under such regulations as 
may be prescribed by law. 

The Court of Criminal appeals and the judges thereof shall have 
the power to issue the writ of habeas corpus, and under such regu¬ 
lations as may be prescribed by law, issue such writs as may be 
necessary to enforce its own jurisdiction. The Court of Criminal 
appeals shall have power upon affidavit or otherwise to ascertain 
such matters of fact as may necessary to the exercise of its juris¬ 
diction. The Court of Criminal appeals shall sit for the trans¬ 
action of business from the first Monday in October to the last 
Saturday of June in each year, at the State Capital and two other 
places (or the Capital City) if the legislature shall hereafter so 
provide. The Court of Criminal appeals shall appoint a clerk for 
each place at which it may sit and each clerk shall give bond in 
such manner as is now or may hereafter be required by law, and 
who shall hold his office for four years unless sooner removed by 
the Court for good cause entered of record on the minutes of said 
Court. 

Section 6. Supreme Judicial Districts; Courts of Civil 
Appeals; Jurisdiction; Term; Justices; Election; Salary; 
Clerk.— The legislature shall as soon as practicable after the 
adoption of this amendment divide the State into not less than two 
nor more than three Supreme judicial districts and thereafter into 
such additional districts as the increase of population and business 
may require, and shall establish a Court of Civil appeals in each 
of said districts, which shall consist of a Chief Justice and two 


30 THE CONSTITUTION OF THE STATE OF TEXAS 


associate justices, who shall have the qualifications as herein pre¬ 
scribed for Justices of the Supreme Court. Said Court of Civil 
appeals shall have appellate jurisdiction coextensive with the lim¬ 
its of their respective districts, which shall extend to all civil cases 
of which the district Courts or county Courts have original or 
appellate jurisdiction, under such restrictions and regulations as 
may be prescribed by law. Provided, that the decision of said 
Courts shall be conclusive on all questions of fact brought before 
them on appeal or error. 

Each of said Courts of Civil Appeals shall hold its sessions at a 
place in its district to be designated by the legislature and at such 
time as may be prescribed by law. Said Justices shall be elected by 
the qualified voters of their respective districts at a general election, 
for a term of six years and shall receive for their services the sum 
of three thousand five hundred dollars per annum, until otherwise 
provided by law. 

Said Courts shall have such other jurisdiction, original and ap¬ 
pellate as may be prescribed by law. 

Each Court of Civil appeals shall appoint a clerk in the same 
manner as the Clerk of the Supreme Court which clerk shall re¬ 
ceive such compensation as may be fixed by law. 

Until the organization of the Courts of Civil appeals and Crimi¬ 
nal appeals, as herein provided for, the jurisdiction, power and 
organization and location of the Supreme Court, the Court of ap¬ 
peals and the Commission of appeals shall continue as they were 
before the adoption of this amendment. 

All civil cases which may be pending in the Court of appeals 
shall as soon as practicable after the organization of the Courts of 
Civil appeals be certified to, and the records thereof transmitted 
to the proper Courts of Civil appeals to be decided by said Courts. 
At the first session of the Supreme Court the Court of Criminal 
appeals and such of the Courts of civil appeals which may be 
hereafter created under this article after the first election of the 
judges of such courts under this amendment. The terms of office 
of the judges of each Court shall be divided into three Classes and 
the justices thereof shall draw for the difTerent Classes. Those 
who shall draw Class No. i shall hold their offices two years, those 
drawing Class No. 2 shall hold their offices for four years and 
those who may draw class No. 3 shall hold their offices for six 
years, from the date of their election and until their successors are 
elected and qualified, and thereafter each of the said judges shall 
hold his office for six years, as provided in this Constitution. 


THE CONSTITUTION OF THE STATE OF TEXAS 


31 


Section 7. Judicial Districts; Judges; Their Qualifica¬ 
tions; Residence; Term of Office; Salary; Terms of Court. 
—The state shall be divided into as many judicial districts as may 
now or hereafter be provided by law, which may be increased or di¬ 
minished bylaw. For each district there shall be elected by the quali¬ 
fied voters thereof, at a general election, a judge, who shall be a 
citizen of the United States and of this State, who shall have been 
a practicing lawyer of this state or a Judge of a Court in this 
State, for four years next preceding his election, who shall have 
resided in the district in which he was elected for two years next 
preceding his election, who shall reside in his district during his 
term of office, who shall hold his office for the period of four years, 
and shall receive for his services an annual salary of two thousand 
and five hundred dollars, until otherwise changed by law. He shall 
hold the regular terms of his Court at the County Seat of each 
County in his district at least twice in each year in such manner 
as may be prescribed by law. 

The Legislature shall have power by general or special laws to 
authohrize the holding of special terms of the Court or the holding 
of more than two terms in any County for the dispatch of business. 

The Legislature shall also provide for the holding of district 
court when the judge thereof is absent, or is from any cause dis¬ 
abled or disqualified from presiding. 

The district judges who may be in office when this amendment 
takes effect shall hold their offices until their respective terms 
shall expire under their present election or appointment. 

Section 8. Jurisdiction and Powers of the District Courts. 
—The district court shall have original jurisdiction in all criminal 
cases of the grade of felony; in all suits in behalf of the State to 
recover penalties, forfeitures and escheats; of all cases of divorce; 
of all misdemeanors involving official misconduct; of all suits to 
recover damages for slander or defamation of character; of all 
suits for trial of title to land and for the enforcement of liens 
thereon; of all suits for the trial of the right of property levied upon 
by virtue of any writ of execution, sequestration or attachment 
when the property levied on shall be equal to or exceed in value 
five hundred dollars; of all suits, complaints or pleas whatever, 
without regard to any distinction between law and equity, when 
the matter in controversy shall be valued at or amount to five 
hundred dollars exclusive of interest; of contested elections, and 
said court and the judges thereof shall have power to issue writs 


32 


THE CONSTITUTION OF THE STATE OF TEXAS 


of habeas corpus, mandamus, injunction and certiorari and all 
writs necessary to enforce their jurisdiction. 

The district court shall have appellate jurisdiction and general 
control in probate matters, over the County Court established in 
each County, for appoint guardians, granting letters testamen¬ 
tary and of administration, probating wills, for settling the ac¬ 
counts of executors, administrators and guardians, and for the 
transaction of all business appertaining to estates; and general 
jurisdiction and general control over executors, administrators, 
guardians and minors under such regulations as may be prescribed 
by law. The district Court shall have appellate jurisdiction and 
general supervisory control over the County Commissioners 
Court with such exceptions and under such regulations as may 
be prescribed by law; and shall have general original jurisdiction 
over all causes of action whatever for which a remedy or jurisdic¬ 
tion is not provided by law or this Constitution, and such other 
jurisdiction, original and appellate, as may be provided by law. 

Sec. 9. Clerk of the District Court ; Term of Office ; How 
Removed; How Vacancy Is Filled. —There shall be a Clerk for 
the District Court of each county, who shall be elected by the 
qualified voters for the State and county officers, and who shall 
hold his office for two years, subject to removal by information, 
or by indictment of a grand jury, and conviction by a petit jury. 
In case of vacancy the judge of the District Court shall have the 
power to appoint a clerk, who shall hold until the office can be 
filled by election. 

Sec. 10. Jury Trial; by Whom Fee Is to Be Paid. —In the 
trial of all causes in the district courts, the plaintiff or defendant 
shall, upon application made in open court, have the right of trial 
by jury; but no jury shall be impaneled in any civil case unless 
demanded by a party to the case, and a jury fee be paid by the 
party demanding a jury, for such sum, and with such exceptions 
as may be prescribed by the Legislature. 

Section ii. Disqualification of Judges; Special Judges; 
Exchange of Districts ; Vacancies. —No Judge shall sit in any 
case wherein he may be interested, or where either of the parties 
may be connected with him, either by affinity or consanguinity, 
within such a degree as may be prescribed by law; or when he 
shall have been counsel in the case. When the Supreme Court, 


33 


THE CONSTITUTION OF THE STATE OF TEXAS 

the Court of Criminal appeals, the Court of Civil appeals, or any 
member of either, shall be thus disqualified to hear and determine 
any case or cases in said Court, the same shall be certified to the 
Governor of the State, who shall immediately commission the 
requisite number of persons learned in the law for the trial and 
determination of such cause or causes. When a judge of the dis¬ 
trict court is disqualified by any of the causes above stated, the 
parties may, by consent, appoint a proper person to try said case; 
or upon their failing to do so, a competent person may be ap¬ 
pointed to try the same in the County where it is pending, in such 
manner as may be prescribed by law. 

And the district Judges may exchange districts, or hold Courts 
for each other when they deem it expedient, and shall do so when 
required by law. This disqualification of judges of inferior tri¬ 
bunals shall be remedied and vacancies in their offices filled as may 
be prescribed by law. 

Section 12. Judges Conservators of Peace ; Style of Writs ; 
Prosecution by State. —All judges of courts of this State, by 
virtue of their office, be conservators of the peace throughout the 
State. The style of all writs and process shall be, “The State of 
Texas.” All prosecutions shall be carried on in the name and by 
authority of the State of Texas, and shall conclude: “Against the 
peace and dignity of the State.” 

Sec. 13. Jurors, Grand and Petit; Number Required to 
Return Verdict.— Grand and petit juries in the district courts 
shall be composed of twelve men; but nine members of a grand 
jury shall be a quorum to transact business and present bills. In 
trials of civil cases, and in trials of criminal cases below the grade 
of felony in the district courts, nine members of the jury, concur¬ 
ring, may render a verdict, but when the verdict shall be rendered 
by less than the whole number, it shall be signed by every member 
of the jury concurring in it. When, pending the trial of any case, 
one or more jurors not exceeding three, may die, or be disabled 
from sitting, the remainder of the jury shall have the power to 
render the verdict; provided, that the Legislature may change or 
modify the rule authorizing less than the whole number of the 
jury to render a verdict. 

Sec. 14. Districts Fixed by Ordinance. —The Judicial Dis¬ 
tricts in this State and the time of holding the courts therein are 


34 


THE CONSTITUTION OF THE STATE OF TEXAS 


fixed by ordinance forming part of this Constitution, until other¬ 
wise provided by law. 

Sec. 15. County Court; Election; Term of Office of 
County Judges; Fees. —There shall be established in each county 
in this State a County Court, which shall be a court of record; and 
there shall be elected in each county, by the qualified voters, a 
County Judge, who shall be well informed in the law of the State; 
shall be a conservator of the peace, and shall hold his office for two 
years, and until his successor shall be elected and qualified. He 
shall receive as a compensation for his services such fees and per¬ 
quisites as may be prescribed by law. 

Section 16. Jurisdiction of County Court; Appeals; Pro¬ 
bate Jurisdiction; May Issue Writs; Judge Disqualified, 
When. —The county court shall have original jurisdiction of all 
misdemeanors of which exclusive original jurisdiction is not given to 
the Justices Courts as the same is now or may hereafter be pre¬ 
scribed by law, and when the fine to be imposed shall exceed $200, 
and they shall have exclusive jurisdiction in all civil cases when the 
matter in controversy shall exceed in value $200, and not exceed 
$500, inclusive of interest, and concurrent jurisdiction with the 
district court when the matter in controversy shall exceed $500, 
and not exceed $1000, exclusive of interest, but shall not have 
jurisdiction of suits for the recovery of land. They shall have ap¬ 
pellate jurisdiction in cases civil and criminal of which justices 
courts have original jurisdiction, but of such civil cases only when 
the judgment of the court appealed from shall exceed $20, exclu¬ 
sive of cost, under such regulations as may be prescribed by law. 
In all appeals from justices court there shall be a trial de novo in 
the County Court, and appeals may be prosecuted from the final 
judgment rendered in such cases by the County Court, as well as 
all cases Civil and Criminal of which the County Court has ex¬ 
clusive or concurrent or original jurisdiction of Civil appeals in 
Civil cases to the Court of Civil appeals and in such criminal cases 
to the Court of Criminal appeals, with such exceptions and under 
such regulations as may be prescribed by law. 

The County Court shall have the general jurisdiction of a pro¬ 
bate court; they shall probate wills, appoint guardians of minors, 
idiots, lunatics, persons non compos mentis and common drunk¬ 
ards, grant letters testamentary and of administration, settle ac- 


35 


THE CONSTITUTION OF THE STATE OF TEXAS 

counts of executors, transact all business appertaining to deceased 
persons, minors, idiots, lunatics, persons non compos mentis and 
common drunkards, including the settlement, partition and dis¬ 
tribution of estates of deceased persons and to apprentice minors, 
as provided by law; and the County Court, or Judge thereof, shall 
have power to issue writs of injunctions, mandamus and all writs 
necessary to the enforcement of the jurisdiction of said court, and 
to issue writs of habeas corpus in cases where the offense charged 
is within the jurisdiction of the County Court, or any other court 
or tribunal inferior to said court. The County Court shall not have 
criminal jurisdiction in any county where there is a criminal dis¬ 
trict court, unless expressly conferred by law, and in such coun¬ 
ties appeals from justices courts and other inferior courts and 
tribunals in criminal cases shall be to the Criminal district Court, 
under such regulations as may be prescribed by law, and in all such 
cases an appeal shall lie from such district Court to the Court of 
Criminal appeals. 

When the judge of the County Court is disqualified in any case 
pending in the County Court the parties interested may, by consent, 
appoint a proper person to try said case, or upon their failing to 
do so a competent person may be appointed to try the same in the 
county where it is pending in such manner as may be prescribed by 
law. 

Sec. 17. Terms of County Court for Criminal Business; 
Prosecutions Commenced by Information; Grand Jury to 
Inquire Into Misdemeanors; Quashing of Grand Jury In¬ 
dictments; Jury.— The county court shall hold a term for civil 
business at least once in every two months, and shall dispose of 
probate business, either in term time or vacation as may be pro¬ 
vided by law, and said court shall hold a term for criminal business 
once in every month as may be provided by law. Prosecutions may 
be commenced in said court by information filed by the county at¬ 
torney, or by affidavit, as may be provided by law. Grand juries 
impaneled in the district courts shall enquire into misdemeanors, 
and all indictment therefor returned into the district courts shall 
forthwith be certified to the county courts or other inferior courts, 
having jurisdiction to try them for trial; and if such indictment 
be quashed in the county, or other inferior court, the person 
charged, shall not be discharged if there is probable cause of guilt, 
but may be held by such court or magistrate to answer an inf or- 


36 


THE CONSTITUTION OF THE STATE OF TEXAS 


mation or affidavit. A jury in the county court shall consist of six 
men; but no jury shall be impaneled to try a civil case unless de¬ 
manded by one of the parties, who shall pay such jury fee there¬ 
for, in advance, as may be prescribed by law, unless he makes affi¬ 
davit that he is unable to pay the same. 

Sec. 18. Terms of Justices of the Peace; County Commis¬ 
sioners and Commissioners Court. —Each organized county in 
the State now or hereafter existing, shall be divided from time to 
time, for the convenience of the people, into precincts, not less 
than four and not more than eight. The present county courts shall 
make the first division. Subsequent divisions shall be made by the 
commissioners’ court provided for by this Constitution. In each 
such precinct there shall be elected at each biennial election, one 
justice of the peace and one constable, each of whom shall hold 
his office for two years and until his successor shall be elected and 
qualified; provided that in any precinct in which there may be a 
city of 8000 or more inhabitants, there shall be elected two jus¬ 
tices of the peace. Each county shall in like manner be divided 
into four commissioners’ precincts in each of which there shall be 
elected by the qualified voters thereof one county commissioner, 
who shall hold his office for two years and until his successor shall 
be elected and qualified. The county commissioners so chosen, with 
the county judge, as presiding officer, shall compose the county 
commissioners court, which shall exercise such powers and juris¬ 
diction over all county business, as is conferred by this Constitu¬ 
tion and the laws of this State, or as may be hereafter prescribed. 

Sec. 19. Criminal Jurisdiction of Justices of the Peace; 
Appeals; Justices of the Peace Ex-Officio Notaries. —Jus¬ 
tices of the peace shall have jurisdiction in criminal matters of all 
cases where the penalty or fine to be imposed by law may not be 
more than for two hundred dollars, and in civil matters of all cases 
where the amount in controversy is two hundred dollars or less, 
exclusive of interest, of which exclusive original jurisdiction is 
not given to the district or county courts; and such other jurisdic¬ 
tion, criminal and civil, as may be provided by law, under such 
regulations as may be prescribed by law; and appeals to the county 
courts shall be allowed in all cases decided in justices’ courts where 
the judgment is for more than twenty dollars exclusive of costs; 
and in all criminal cases under such regulations as may be pre¬ 
scribed by law. And the justices of the peace shall be ex officio 


THE CONSTITUTION OF THE STATE OF TEXAS 


37 


notaries public and they shall hold their courts at such times and 
places as may be provided by law. 

Sec. 20. County Clerk; Election; Term; Duties; Va¬ 
cancies. —There shall be elected for each county, by the qualified 
voters, a county clerk, who shall hold his office for two years, who 
shall be clerk of the county and commissioners’ courts and re¬ 
corder of the county, whose duties, perquisites and fees of office 
shall be prescribed by the Legislature, and a vacancy in whose 
office shall be filled by the commissioners’ court until the next gen¬ 
eral election for county and State officers; provided, that in coun¬ 
ties having a population of less than eight thousand persons there 
may be an election of a single clerk, who shall perform the duties 
of district and county clerks. 

Sec. 21. County and District Attorneys; Duties; Vacan¬ 
cies ; Fees. —A county attorney, for counties in which there is not 
a resident criminal district attorney, shall be elected by the quali¬ 
fied voters of each county, who shall be commissioned by the Gov¬ 
ernor, and hold his office for the term of two years. In case of 
vacancy the commissioners’ court of the county shall have power 
to appoint a county attorney until the next general election. The 
county attorneys shall represent the State in all cases in the dis¬ 
trict and inferior courts in their respective counties; but if any 
county shall be included in a district in which there shall be a dis¬ 
trict attorney, the respective duties of district attorneys and county 
attorneys shall in such counties be regulated by the Legislature. 
The Legislature may provide for the election of district attorneys 
in such districts, as may be deemed necessary, and make provision 
for the compensation of district attorneys, and county attorneys; 
provided, district attorneys shall receive an annual salary of five 
hundred dollars, to be paid by the State, and such fees, commis¬ 
sions and perquisites as may be provided by law. County attorneys 
shall receive as compensation only such fees, commissions and 
perquisites as may be prescribed by law. 

Sec. 22. Jurisdiction of Courts May Be Changed by Leg¬ 
islature. —The Legislature shall have power, by local or general 
law, to increase, diminish or change the civil and criminal jurisdic¬ 
tion of county courts; and in cases of any such change of juris¬ 
diction, the Legislature shall also conform the jurisdiction of the 
other courts to such change. 


38 


THE CONSTITUTION OF THE STATE OF TEXAS 


Sec. 23. Sheriff; Term of Office; Vacancy. —There shall 
be elected by the qualified voters of each county a sheriff, who 
shall hold his office for the term of two years, whose duties, and 
perquisites, and fees of office, shall be prescribed by the Legisla¬ 
ture, and vacancies in whose office shall be filled by the commis¬ 
sioners’ court until the next general election for county or State 
officers. 

Sec. 24. Certain Officers Removed by District Courts for 
Drunkenness, Incompetency, Official Misconduct, Etc.— 
County judges, county attorneys, clerks of the district and county 
courts, justices of the peace, constables, and other county officers, 
may be removed by the judges of the district courts for incom¬ 
petency, official misconduct, habitual drunkenness, or other causes 
defined by law, upon the cause therefor being set forth in writing 
and the finding of its truth by a jury. 

Section 25. Supreme Court to Regulate Practice. —The Su¬ 
preme Court shall have power to make and establish rules of pro¬ 
cedure not inconsistent with the laws of the State for the govern¬ 
ment of said Court and the other Courts of this State to expedite 
the dispatch of business therein. 

Sec. 26. No Appeal in Criminal Cases by the State. —The 
State shall have no right of appeal in criminal cases. 

Sec. 27. Transfer of Cases by the Legislature. —The Leg¬ 
islature shall, at its first session, provide for the transfer of all 
business, civil and criminal, pending in district courts, over which 
jurisdiction is given by this Constitution to the county courts, or 
other inferior courts, to such county or inferior courts, and for 
the trial or disposition of all such causes by such county or other 
inferior courts. 

Sec. 28. Vacancies in Offices of Judges of Superior Courts 
to Be Filled by the Governor. —Vacancies in the office of 
judges of the Supreme Court, the Court of Criminal appeals, the 
Court of Civil appeals and the district Courts shall be filled by the 
Governor until the next succeeding general election; and vacancies 
in the office of County Judge and justices of the peace shall be 
filled by the Commissioners Court until the next general election 
for such offices. 

Section 29. Terms of County Courts; Probate Buisness; 
Prosecutions. —The County Court shall hold at least four terms 



THE CONSTITUTION OF THE STATE OF TEXAS 


39 


for both civil and criminal business annually as may be provided 
by the Legislature or by the Commissioners Court of the County 
under authority of law and such other terms each year as may be 
fixed by the Commissioners Court; provided, the Commissioners 
Court of any County having fixed the times and number of terms 
of the County Court shall not change the same again until the ex¬ 
piration of one year. Said Court shall dispose of probate business 
either in term time or vacation under such regulation as may be 
prescribed by law. Prosecutions may be commenced in said Courts 
in such manner as is or may be provided by law, and a Jury therein 
shall consist of six men. Until otherwise provided the terms of 
the County Court shall be held on the first mondays in February, 
May, August and November and may remain in session three 
weeks. 


ARTICLE VI. 

SUFFRAGE. 

Section i. Persons Who Cannot Vote. —The following 
classes of persons shall not be allowed to vote in this State, towit: 

First: Persons under twenty-one (21) years of age. 

Second: Idiots and lunatics. 

Third: All paupers supported by any county. 

Fourth: All persons convicted of any felony, subject to such ex¬ 
ceptions as the Legislatures may make. 

Fifth: All soldiers, marines and seamen, employed in the service 
of the Army or Navy of the United States. Provided that this re¬ 
striction shall not apply to officers of the National Guard of Texas, 
the National Guard Reserve, the Officers Reserve Corps of the 
United States, nor to enlisted men of the National Guard, the Na¬ 
tional Guard Reserve, and the Organized Reserves of the United 
States, nor to retired officers of the United States Army, Navy, 
and Marine Corps, and retired warrant officers and retired enlisted 
men of the United States Army, Navy, and Marine Corps. 

Section 2. Poll Tax Payment Required of Voters.— Every 
person subject to none of the foregoing disqualifications, who shall 
have attained the age of twenty-one years and who shall be a citi¬ 
zen of the United States and who shall have resided in this State 
one year next preceding an election and the last six months within 


40 THE CONSTITUTION OF THE STATE OF TEXAS 

the district or county in which such person offers to vote, shall 
be deemed a qualified elector; provided, that electors living in any 
unorganized county may vote at any election precinct in the county 
to which such county is attached for judicial purposes; and pro¬ 
vided further, that any voter who is subject to pay a poll tax un¬ 
der the laws of the State of Texas shall have paid said tax before 
offering to vote at any election in this State and hold a receipt 
showing that said poll tax was paid before the first day of Feb¬ 
ruary next preceding such election. Or if said voter shall have lost 
or misplaced said tax receipt, he or she, as the case may be, shall 
be entitled to vote upon making affidavit before any officer au¬ 
thorized to administer oaths that such tax receipt has been lost. 
Such affidavit shall be made in writing and left with the judge of 
the election. The husband may pay the poll tax of his wife and 
receive the receipt therefor. In like manner the wife may pay the 
poll tax of her husband and receive the receipt therefor. The Leg¬ 
islature may authorize absentee voting. And this provision of the 
Constitution shall be self-enacting without the necessity of fur¬ 
ther legislation. 

Sec. 3. Electors in Towns and Cities; Only Property 
Taxpayers to Vote in Certain Instances. —All qualified elec¬ 
tors of the State, as herein described, who shall have resided for 
six months immediately preceding an election, within the limits of 
any city or corporate town, shall have the right to vote for Mayor 
and all other elective officers; but in all elections to determine ex¬ 
penditure of money or assumption of debt, only those shall be 
qualified to vote who pay taxes on property in said city or incor¬ 
porated town; provided, that no poll tax for the payment of debts 
thus incurred, shall be levied upon the persons debarred from 
voting in relation thereto. 

Sec. 3a. When an election is held by any county, or any num¬ 
ber of counties, or any political sub-division of the State, or any 
political sub-division of a county, or any defined district now or 
hereafter to be described and defined within the State and which 
may or may not include towns, villages or municipal corporations, 
or any city, town or village, for the purpose of issuing bonds or 
otherwise lending credit, or expending money or assuming any 
debt, only qualified electors who own taxable property in the State, 
county, political sub-division, district, city, town or village where 
such election is held, and who have duly rendered the same for 


41 


THE CONSTITUTION OF THE STATE OF TEXAS 

taxation, shall be qualified to vote and all electors shall vote in the 
election precinct of their residence. 

Section 4. Election by Ballot ; Registration in Cities of 
10,000 Inhabitants or More.— In all elections by the people the 
vote shall be by ballot and the Legislature shall provide for the 
numbering of tickets and make such other regulations as may be 
necessary to detect and punish fraud and preserve the purity of 
the ballot box and the Legislature may provide by law for the 
registration of all voters in all cities containing a population of ten 
thousand inhabitants or more. 

Sec. 5. Voters Privileged from Arrest.— Voters shall, in all 
cases, except treason, felony or breach of the peace, be privileged 
from arrest during their attendance at elections, and in going to 
and returning therefrom. 


ARTICLE VII. 

EDUCATION—THE PUBLIC FREE SCHOOLS. 

Sec. i. Public Schools to Be Established. —A general dif¬ 
fusion of knowledge being essential to the preservation of the liber¬ 
ties and rights of the people, it shall be the duty of the Legislature 
of the State to establish and make suitable provision for the sup¬ 
port and maintenance of an efficient system of public free schools. 

Sec. 2. Provisions Governing the Levy and Collection of 
Taxes for the Support of the Public Free Schools. —All 
funds, lands and other property heretofore set apart and appropri¬ 
ated for the support of public schools; all the alternate sections of 
land reserved by the State out of grants heretofore made or that 
may hereafter be made to railroads or other corporations of any 
nature whatsoever; onehalf of the public domain of the State; and 
all sums of money that may come to the State from the sale of any 
portion of the same, shall constitute a perpetual public school fund. 

Section 3. School Taxes. —One-fourth of the revenue derived 
from the State Occupation taxes and poll tax of one dollar on every 
inhabitant of the States, between the ages of twenty-one and sixty 
years, shall be set apart annually for the benefit of the public free 
schools; and in addition thereto, there shall be levied and collected 


42 THE CONSTITUTION OF THE STATE OF TEXAS 


an annual ad valorem State tax of such an amount not to exceed 
thirty-five cents on the one hundred ($100.00) dollars valuation, 
as with the available school fund arising from all other sources, 
will be sufficient to maintain and support the public schools of this 
State for a period of not less than six months in each year, and 
it shall be the duty of the State Board of Education to set aside 
a sufficient amount out of the said tax to provide free textbooks 
for the use of children attending the public free schools of this 
State; provided, however, that should the limit of taxation herein 
named be insufficient the deficit may be met by appropriation from 
the general funds of the State and the Legislature may also pro¬ 
vide for the formation of school districts by general laws; and all 
such school districts may embrace parts of two or more counties, 
and the Legislature shall be authorized to pass laws for the assess¬ 
ment and collection of taxes in all said districts and for the manage¬ 
ment and control of the public school or schools of such districts, 
whether such districts are composed of territory wholly within a 
county or in parts of two or more counties, and the Legislature 
may authorize an additional ad valorem tax to be levied and col¬ 
lected within all school districts heretofore formed or hereafter 
formed, for the further maintenance of public free schools, and 
for the erection and equipment of school buildings therein; pro¬ 
vided that a majority of the qualified property tax-paying voters 
of the district voting at an election to be held for that purpose, 
shall vote such tax not to exceed in any one year one (1.00) dollar 
on the one hundred dollars valuation of the property subject to 
taxation in such district, but the limitation upon the amount of 
school district tax herein authorized shall not apply to incorporated 
cities or towns constituting separate and independent school dis¬ 
tricts, nor to independent or common school districts created by 
general or special law. 

Sec. 3a. County Line Districts ; Validation ; Bonds ; Taxa¬ 
tion.— Every school district heretofore formed, whether formed 
under the general law or by special act, and whether the territory 
embraced within its boundaries lies wholly within a single county 
or partly in two or more counties, is hereby declared to be, and from 
its formation to have been, a valid and lawful district. 

All bonds heretofore issued by any such districts which have been 
approved by the Attorney General and registered by the Comp¬ 
troller are hereby declared to be, and at the time of their issuance 


43 


THE CONSTITUTION OF THE STATE OF TEXAS 

to have been, issued in conformity with the Constitution and laws 
of this State, and any and all such bonds are hereby in all things 
validated and declared to be valid and binding obligations upon the 
district or districts issuing the same. 

Each such district is hereby authorized to, and shall annually 
levy and collect an ad valorem tax sufficient to pay the interest on 
all such bonds and to provide a sinking fund sufficient to redeem 
the same at maturity, not to exceed such a rate as may be provided 
by law under other provisions of this Constitution. 

And all trustees heretofore elected in districts made up from 
more than one county are hereby declared to have been duly elected, 
and shall be and are hereby named as trustees of their respective 
districts, with power to levy the taxes herein authorized until their 
successor shall be duly elected and qualified as is or may be pro¬ 
vided by law. 

Section 4. Sale of School Lands ; No Release to Purchas¬ 
ers ; the Investment of Proceeds. —The lands herein set apart 
to the Public Free School fund, shall be sold under such regulations, 
at such times, and on such terms as may be prescribed by law; and 
the Legislature shall not have power to grant any relief to pur¬ 
chasers thereof. The Comptroller shall invest the proceeds of such 
sales, and of those heretofore made, as may be directed by the 
Board of Education herein provided for, in the bonds of the United 
States, the State of Texas, or counties in said State, or in such 
other securities, and under such restrictions as may be prescribed 
by law; and the State shall be responsible for all investments. 

Sec. 5. Permanent School Fund; Interest; Alienation; 
Sectarian Schools. —The principal of all bonds and other funds, 
and the principal arising from the sale of the lands hereinbefore 
set apart to said school fund, shall be the permanent school fund, 
and all the interest derivable therefrom and the taxes herein au¬ 
thorized and levied shall be the available school fund, to which the 
Legislature may add not exceeding one per cent annually of the 
total value of the permanent school funds, such value to be ascer¬ 
tained by the Board of Education until otherwise provided by law, 
and the available school fund shall be applied annually to the sup¬ 
port of the public free schools. And no law shall ever be enacted 
appropriating any part of the permanent or available school fund 
to any other purpose whatever: nor shall the same, or any part 
thereof ever be appropriated to or used for the support of any 


44 THE CONSTITUTION OF THE STATE OF TEXAS 


sectarian school: and the available school fund herein provided 
shall be distributed to the several counties according to their scho¬ 
lastic population and applied in such manner as may be provided by 
law. 

Section 6. County School Lands ; Limitations ; Settlers ; 
Proceeds. —All lands heretofore, or hereafter granted to the sev¬ 
eral counties of this State for educational purposes, are of right the 
property of said counties respectively, to which they were granted, 
and title thereto is vested in said counties, and no adverse possession 
or limitation shall ever be available against the title of any county. 
Each county may sell or dispose of its lands in whole or in part, in 
manner to be provided by the Commissioners’ Court of the county. 
Actual settlers residing on said land, shall be protected in the prior 
right of purchasing the same to the extent of their settlement, not 
to exceed one hundred and sixty acres, at the price fixed by said 
court, which price shall not include the value of existing improve¬ 
ments made thereon by such settlers. Said lands, and the proceeds 
thereof, when sold, shall be held by said counties alone as a trust for 
the benefit of public schools therein; said proceeds to be invested 
in bonds of the United States, the State of Texas, or counties in 
said State, or in such other securities, and under such restrictions 
as may be prescribed by law; and the counties shall be responsible 
for all investments; the interest thereon, and other revenue, except 
the principal shall be available fund. 

Sec. 6a. All agriculture or grazing school land mentioned in 
Section 6 of this Article owned by any county shall be subject to 
taxation except for State purposes to the same extent as lands pri¬ 
vately owned. 

Section 7. Schools for White and Colored.— Separate 
schools shall be provided for the white and colored children, and 
impartial provision shall be made for both. 

Sec. 8. Board of Education. —The Legislature shall provide by 
law for a State Board of Education, whose members shall be ap¬ 
pointed or elected in such manner and by such authority and shall 
serve for such terms as the Legislature shall prescribe not to ex¬ 
ceed six years. The said board shall perform such duties as may 
be prescribed by law. 




THE CONSTITUTION OF THE STATE OF TEXAS 


45 


ASYLUMS. 

Section 9. Lands of Asylums ; Sale.— All lands heretofore 
granted for the benefit of the Lunatic, Blind, Deaf and Dumb, and 
Orphan Asylums, together with such donations as may have been 
or may hereafter be made to either of them, respectively, as indi¬ 
cated in the several grants, are hereby set apart to provide a per¬ 
manent fund for the support, maintenance and improvement of said 
Asylum. And the Legislature may provide for the sale of the lands 
and the investment of the proceeds in manner as provided for the 
sale and investment of school lands in sec. 4 of this Article. 

UNIVERSITY. 

Sec. 10. University Lands and Funds. —The Legislature shall 
as soon as practicable establish, organize and provide for the main¬ 
tenance, support and direction of a University of the first class, 
to be located by a vote of the people of this State, and styled, “The 
University of Texas ”, for the promotion of literature, and the arts 
and sciences, including an Agricultural, and Mechanical depart¬ 
ment. 

Section ii. Funds of University, How Invested.— In order 
to enable the Legislature to perform the duties set forth in the fore¬ 
going Section, it is hereby declared all lands and other property 
heretofore set apart and appropriated for the establishment and 
maintenance of the University of Texas, together with all the pro¬ 
ceeds of sales of the same, heretofore made or hereafter to be made, 
and all grants, donations and appropriations that may hereafter be 
made by the State of Texas, or from any other source, except 
donations limited to specific purposes, shall constitute and become 
a Permanent University Fund. And the same as realized and re¬ 
ceived into the Treasury of the State (together with such sums 
belonging to the Fund, as may now be in the Treasury), shall be 
invested in bonds of the United States, the State of Texas, or 
counties of said State, or in School Bonds of municipalities, or in 
bonds of any city of this State, or in bonds issued under and by 
virtue of the Federal Farm Loan Act approved by the President of 
the United States, July 17, 1916, and amendments thereto; and the 
interest accruing thereon shall be subject to appropriation by the 
Legislature to accomplish the purpose declared in the foregoing 


46 


THE CONSTITUTION OF THE STATE OF TEXAS 


Section; provided that the one-tenth of the alternate Sections of 
the lands granted to railroads, reserved by the State, which were 
set apart and appropriated to the establishment of the University 
of Texas, by an Act of the Legislature of February n, 1858, en¬ 
titled, “An Act to establish the University of Texas/’ shall not be 
included in, or constitute a part of, the Permanent University 
Fund. 

Sec. 12. Lands to Be Sold; Relief of Purchasers. —The land 
herein set apart to the University fund shall be sold under such 
regulations, at such times, and on such terms as may be provided 
by law; and the Legislature shall provide for the prompt collection, 
at maturity, of all debts due on account of University lands, here¬ 
tofore sold, or that may hereafter be sold, and shall in neither event 
have the power to grant relief to the purchasers. 

Sec. 13. Agricultural and Mechanical College; Appro¬ 
priations. —The Agricultural and Mechanical College of Texas, 
established by an Act of the Legislature passed April 17th 1871, 
located in the county of Brazos, is hereby made, and constituted a 
Branch of the University of Texas, for instruction in Agriculture, 
the Mechanic Arts, and the Natural Sciences connected therewith, 
And the Legislature shall at its next session, make an appropria¬ 
tion, not to exceed forty thousand dollars, for the construction and 
completion of the buildings and improvements, and for providing 
the furniture necessary to put said College in immediate and suc¬ 
cessful operation. 

Sec. 14. Branch University for Colored. —The Legislature 
shall also when deemed practicable, establish and provide for the 
maintenance of a College or Branch University for the instruction 
of the colored Youths of the State, to be located by a vote of the 
people; Provided, that no tax shall be levied, and no money appro¬ 
priated, out of the general revenue, either for this purpose or for 
the establishment, and erection of the buildings of the University 
of Texas. 

Sec. 15. Land Appropriated for Universities to Be Sold.— 
In addition to the lands heretofore granted to the University of 
Texas, there is hereby set apart, and appropriated, for the endow¬ 
ment maintenance, and support of said University and its branches, 
one million acres of the unappropriated public domain of the State, 
to be designated, and surveyed as may be provided by law; and said 


47 


THE CONSTITUTION OF THE STATE OF TEXAS 

lands shall be sold under the same regulations, and the proceeds 
invested in the same manner, as is provided for the sale and invest¬ 
ment of the permanent University Fund; and the Legislature shall 
not have power to grant any relief to the purchasers of said lands. 

Sec. 16. Legislature to Fix Terms of Officers of Public 
School System. —The Legislature shall fix by law the terms of 
all offices of the public school system and of the State institutions 
of higher education, inclusive, and the terms of members of the 
respective boards, not to exceed six years. 

Section 16. 1 All lands mentioned in Sections 11, 12 and 15 of 
Article VII, of the Constitution of the State of Texas, now belong¬ 
ing to the University of Texas shall be subject to taxation for 
county purposes to the same extent as lands privately owned; pro¬ 
vided they shall be rendered for taxation upon values fixed by the 
State Tax Board; and providing that the State shall remit annually 
to each of the counties in which said lands are located an amount 
equal to the tax imposed upon said land for county purposes. 


ARTICLE VIII. 

TAXATION AND REVENUE. 

Sec. 1. Taxation to Be Equal and Uniform; Occupa¬ 
tion and Income Taxes; Exemptions; Limitations Upon 
Counties, Cities, Etc. —Taxation shall be equal and uniform. All 
property in this State, whether owned by natural persons or corpo¬ 
rations, other than municipal, shall be taxed in proportion to its 
value, which shall be ascertained as may be provided by law. The 
Legislature may impose a poll tax. It may also impose occupation 
taxes, both upon natural persons and upon corporations, other than 
municipal, doing any business in this State. It may also tax in¬ 
comes of both natural persons and corporations other than munici¬ 
pal, except that persons engaged in mechanical and agricultural 
pursuits shall never be required to pay an occupation tax; Pro¬ 
vided, that two hundred and fifty dollars worth of household and 
kitchen furniture, belonging to each family in this State, shall be 
exempt from taxation, and provided further that the occupation 

1 Two sections are numbered 16 . “Both were adopted as such and no one 
has authority to change the section numbers.” 


48 


THE CONSTITUTION OF THE STATE OF TEXAS 


tax levied by any county, city or town for any year on persons or 
corporations pursuing any profession or business, shall not exceed 
one-half of the tax levied by the State for the same period on such 
profession or business. 

Section i-a: Three Thousand Dollars ($3,000.00) of the as¬ 
sessed taxable value of all residence homesteads as now defined by 
law shall be exempt from all taxation for all State purposes; pro¬ 
vided that this exemption shall not be applicable to that portion 
of the State ad valorem taxes levied for State purposes remitted 
within those counties or other political subdivisions now receiving 
any remission of State taxes, until the expiration of such period 
of remission, unless before the expiration of such period the board 
or governing body of any one or more of such counties or political 
subdivisions shall have certified to the State Comptroller that the 
need for such remission of taxes has ceased to exist in such county 
or political subdivision; then this Section shall become applicable to 
each county or political subdivision as and when it shall become 
within the provisions hereof. 

Sec. 2. Occupation Taxes; Exemptions. —All occupation 
taxes shall be equal and uniform upon the same class of subjects 
within the limits of the authority levying the tax; but the legislature 
may, by general laws, exempt from taxation public property used 
for public purposes; actual places of religious worship, also any 
property owned by a church or by a strictly religious society for the 
exclusive use as a dwelling place for the ministry of such church or 
religious society, and which yields no revenue whatever to such 
church or religious society; provided that such exemption shall not 
extend to more property than is reasonably necessary for a dwell¬ 
ing place and in no event more than one acre of land; places of 
burial not held for private or corporate profit; all buildings used 
exclusively and owned by persons or associations of persons for 
school purposes and the necessary furniture of all schools and 
property used exclusively and reasonably necessary in conducting 
any association engaged in promoting the religious, educational and 
physical development of boys, girls, young men or young women 
operating under a State or National organization of like character ; 
also the endowment funds of such institutions of learning and re¬ 
ligion not used with a view to profit; and when the same are in¬ 
vested in bonds or mortgages, or in land or other property which 
has been and shall hereafter be bought in by such institutions under 



THE CONSTITUTION OF THE STATE OF TEXAS 


49 


foreclosure sales made to satisfy or protect such bonds or mort¬ 
gages, that such exemption of such land and property shall continue 
only for two years after the purchase of the same at such sale by 
such institutions and no longer, and institutions of purely public 
charity; and all laws exempting property from taxation other than 
the property above mentioned shall be null and void. 

Sec. 3. Taxes to Be Collected for Public Purposes Only. 
—Taxes shall be levied and collected by general laws and for public 
purposes only. 

Sec. 4. Power to Tax Corporations Not to Be Surrendered. 
—The power to tax corporations and corporate property shall not 
be surrendered or suspended by act of the Legislature, by any con¬ 
tract or grant to which the State shall be a party. 

Sec. 5. Railroad Taxes Due Cities and Towns. —All prop¬ 
erty of railroad companies, of whatever description, lying or being 
within the limits of any city or incorporated town within this State, 
shall bear its proportionate share of municipal taxation, and if any 
such property shall not have been heretofore rendered, the authori¬ 
ties of the city or town within which it lies, shall have power to 
require its rendition, and collect the usual municipal tax thereon, 
as on other property lying within said municipality. 

Sec. 6. Appropriations; How Made and for What Period. 
—No money shall be drawn from the Treasury, but in pursuance 
of specific appropriations made by law; nor shall any appropriation 
of money be made for a longer term than two years, except by the 
first Legislature to assemble under this Constitution, which may 
make the necessary appropriations to carry on the government until 
the assemblage of the sixteenth Legislature. 

Sec. 7. Special Funds Not to Be Borrowed or Diverted.— 
The Legislature shall not have power to borrow, or in any manner 
divert from its purpose, any special fund that may, or ought to, 
come into the Treasury; and shall make it penal for any person or 
persons to borrow, withhold or in any manner to divert from its 
purpose any special fund, or any part thereof. 

Sec. 8. Railroad Property ; How Assessed.— All property of 
Railroad companies shall be assessed, and the taxes collected in the 
several counties in which said property is situated, including so 
much of the roadbed and fixtures as shall be in each county. The 
rolling stock may be assessed in gross in the county where the prin- 


50 THE CONSTITUTION OF THE STATE OF TEXAS 


cipal office of the company is located, and the county tax paid upon 
it, shall be apportioned by the Comptroller, in proportion to the 
distance such road may run through any such county, among the 
several counties through which the road passes, as a part of their 
tax assets. 

Sec. 9. Rate of State and Municipal Taxation. —The State 
tax on property, exclusive of the tax necessary to pay the public 
debt, and of the taxes provided for the benefit of public free 
schools, shall never exceed thirty-five cents on the one hundred 
dollars valuation; and no county, city or town shall levy more than 
twenty-five cents for city or county purposes, and not exceeding 
fifteen cents for roads and bridges, and not exceeding fifteen 
cents to pay jurors, on the one hundred dollars valuation, ex¬ 
cept for the payment of debts incurred prior to the adoption of 
the amendment September 25, A. D. 1883; and for the erection 
of public buildings, streets, sewers, waterworks and other per¬ 
manent improvements, not to exceed twenty-five cents on the one 
hundred dollars valuation in any one year, and except as is in this 
Constitution otherwise provided; and the Legislature may also 
authorize an additional annual ad valorem tax to be levied and col¬ 
lected for the further maintenance of the public roads; provided 
that a majority of the qualified property tax paying voters of the 
county voting at an election to be held for that purpose shall vote 
such tax, not to exceed fifteen cents on the one hundred dollars 
valuation of the property subject to taxation in such county. And 
the Legislature may pass local laws for the maintenance of the 
public roads and highways, without the local notice required for 
special or local laws. 

In addition to the foregoing, cities of more than five thousand 
inhabitants may lay out within their corporate limits, improvement 
districts in which they, by and with the consent of a majority of 
the tax payers owning real estate therein may build side walks and 
charge the cost thereof against the abutting property, and may 
build sewers and pave streets and charge one third of the cost 
thereof against the abutting property on either side of the streets 
upon which such improvements are made in such district, and the 
amount charged against all such abutting property shall be deemed 
and held to be a tax against and a lien upon such abutting property, 
and the Legislature is required to enact laws, prescribing the means 
for ascertaining the amount properly chargeable against each parcel 


51 


THE CONSTITUTION OF THE STATE OF TEXAS 

of abutting property and providing for the enforcement of its 
collection. 

Sec. io. Taxes Not to Be Released Except by Two-thirds 
Vote of Each House. —The Legislature shall have no power to 
release the inhabitants of, or property in, any county, city or town 
from the payment of taxes levied for State or County purposes, 
unless in case of great public calamity in any such county, city or 
town, when such release may be made by a vote of two-thirds of 
each House of the Legislature. 

Sec. ii. Where Property Is to Be Assessed. —All property, 
whether owned by persons or corporations shall be assessed for 
taxation, and the taxes paid in the county where situated, but the 
Legislature may, by a two-thirds vote, authorize the payment of 
taxes of non-residents of counties to be made at the office of the 
Comptroller of Public Accounts. And all lands and other property 
not rendered for taxation by the owner thereof shall be assessed at 
its fair value by the proper officer. 

Sec. 12. Unorganized Counties. —All property subject to taxa¬ 
tion in, and owned by residents of unorganized counties, shall be 
assessed and the taxes thereon paid in the counties, to which such 
unorganized counties shall be attached for judicial purposes; and 
lands lying in and owned by non-residents of unorganized counties, 
and lands lying in the territory not laid off into counties shall be as¬ 
sessed and the taxes thereon collected at the office of the Comp¬ 
troller of the State. 

Sec. 13. Tax Sales; Tax Deeds; Redemptions. —Provision 
shall be made by the first Legislature for the speedy sale of a suffi¬ 
cient portion of all lands and other property for the taxes due 
thereon, and every year thereafter for the sale of all lands and 
other property, upon which the taxes have not been paid, and the 
deed of conveyance to the purchaser for all lands and other prop¬ 
erty thus sold shall be held to vest a good and perfect title in the 
purchaser thereof, subject to be impeached only for actual fraud; 
provided that the former owner shall, within two years from date 
of purchaser’s deed, have the right to redeem the land upon the 
payment of double the amount of money paid for the land. 1 

1 An amendment to this section was submitted to the voters in November, 
1932. The Election Board was enjoined from counting the votes and the re¬ 
sult has not been proclaimed. For the text of the proposed amendment, see 
General Laws, 42d Leg., reg. sess., 918-919 (I 93 1 )* 


52 


THE CONSTITUTION OF THE STATE OF TEXAS 


Section 14. There shall be elected by the qualified electors of 
each county at the same time and under the same law regulating the 
election of State and County officers, an Assessor and Collector of 
Taxes, who shall hold his office, for two (2) years and until his 
successor is elected and qualified; and such Assessor and Collector 
of Taxes shall perform all the duties with respect to assessing prop¬ 
erty for the purpose of taxation and of collecting taxes as may be 
prescribed by the Legislature. 

Sec. 15. Tax Liens and Sales. —The annual assessment made 
upon landed property shall be a special lien thereon; and all prop¬ 
erty, both real and personal, belonging to any delinquent taxpayer 
shall be liable to seizure and sale for the payment of all the taxes 
and penalties due by such delinquent; and such property may be 
sold for the payment of the taxes and penalties due by such delin¬ 
quent, under such regulations as the Legislature may provide. 

Section 16. The sheriff of each county in addition to his other 
duties shall be the Assessor and Collector of Taxes therefor; but, 
in counties having ten thousand (10,000) or more inhabitants, to 
be determined by the last preceding census of the United States, 
an Assessor and Collector of Taxes shall be elected to hold office 
for two (2) years and until his successor shall be elected and 
qualified. 

Sec. 17. Power of Legislature as to Taxes. —The specifica¬ 
tion of the objects and subjects of taxation shall not deprive the 
Legislature of the power to require other subjects or objects to be 
taxed in such manner as may be, consistent with the principles of 
taxation fixed in this Constitution. 

Sec. 18. Equalization of Taxes. —The Legislature shall pro¬ 
vide for equalizing, as near as may be, the valuation of all property 
subject to or rendered for taxation, (The County Commissioners’ 
Court to constitute a board of equalization) ; and may also provide 
for the classification of all lands with reference to their value in 
the several counties. 

Section 19. Farm Products in the Hands of the Producer 
Exempt From all Taxation.— Farm products in the hands of 
the producer, and family supplies for home and farm use, are 
exempt from all taxation until otherwise directed by a two-thirds 
vote of all the members elect to both houses of the Legislature. 



THE CONSTITUTION OF THE STATE OF TEXAS 


53 


ARTICLE IX. 

COUNTIES. 

Sec. i. Creation and Organization of Counties; Changing 
of County Lines. —The Legislature shall have power to create 
counties for the convenience of the people subject to the following 
provisions: 

First: In the territory of the State exterior to all counties now 
existing, no new counties shall be created with a less area than nine 
hundred square miles, in a square form, unless prevented by pre¬ 
existing boundary lines. Should the State lines render this imprac¬ 
ticable in border counties, the area may be less. The territory re¬ 
ferred to may, at any time, in whole or in part, be divided into 
counties in advance of population and attached, for judicial and 
land surveying purposes, to the most convenient organized county 
or counties. 

Second. Within the territory of any county or counties now 
existing, no new county shall be created with a less area than seven 
hundred square miles, nor shall any such county now existing be 
reduced to a less area than seven hundred square miles. No new 
counties shall be created so as to approach nearer than twelve 
miles of the county seat of any county from which it may in whole 
or in part be taken. Counties of a less area than nine hundred, but 
of seven hundred or more square miles, within counties now exist¬ 
ing, may be created by a two-thirds vote of each House of the 
Legislature, taken by yeas and nays and entered on the journals. 
Any county now existing may be reduced to an area of not less than 
seven hundred square miles by a like two-thirds vote. When any 
part of a county is stricken off and attached to, or created into an¬ 
other county, the part stricken off shall be holden for and obliged 
to pay its proportion of all the liabilities then existing, of the county 
from which it was taken, in such manner as may be prescribed 
by law. 

Third. No part of any existing county shall be detached from it 
and attached to another existing county until the proposition for 
such change shall have been submitted, in such manner as may be 
provided by law, to a vote of the electors of both counties, and 
shall have received a majority of those voting on the question in 
each. 


54 


THE CONSTITUTION OF THE STATE OF TEXAS 


COUNTY SEATS. 

Sec. 2. How County Seats Are Created and Changed.— 
The Legislature shall pass laws regulating the manner of remov¬ 
ing county seats, but no county seat situated within five miles of the 
geographical centre of the county shall be removed, except by a 
vote of two-thirds of all the electors voting on the subject. A ma¬ 
jority of such electors, however, voting at such election, may 
remove a county seat from a point more than five miles from the 
geographical centre of the county to a point within five miles of 
such centre, in either case the centre to be determined by a certifi¬ 
cate from the Commissioner of the General Land Office. 

Section 3. (1) Holding the belief that the highest degree of 
local self-government which is consistent with the efficient conduct 
of those affiairs by necessity lodged in the Nation and the State will 
prove most responsive to the will of the people, and result to reward 
their diligence and intelligence by greater economy and efficiency 
in their local governmental affairs, it hereby is ordained: 

(2) Any county having a population of sixty-two thousand 
(62,000) or more according to the then last Federal Census may 
adopt a County Home Rule Charter, to embrace those powers ap¬ 
propriate hereto, within the specific limitations hereinafter pro¬ 
vided. It further is provided that the Legislature, by a favoring 
vote of two-thirds of the total membership of both the Senate and 
the House of Representatives, may authorize any county, having 
a population less than that above specified, to proceed hereunder 
for the adoption of a Charter; however, as a condition for such au¬ 
thorization, it is required that notice of the intent to seek Legis¬ 
lative authority hereunder must be published in one or more news¬ 
papers, to give general circulation in the county affected, not less 
than once per week for four (4) consecutive weeks, and the first 
of such publications shall appear not less than thirty (30) days 
next prior to the time an Act making proposal hereunder may be 
introduced in the Legislature. No County Home Rule Charter may 
be adopted by any county save upon a favoring vote of the resident 
qualified electors of the affected county. In elections submitting to 
the voters a proposal to adopt a Charter (unless otherwise pro¬ 
vided by a two-thirds vote of the total membership of each House 
of the Legislature) the votes cast by the qualified electors residing 
within the limits of all the incorporated cities and towns of the 


THE CONSTITUTION OF THE STATE OF TEXAS 55 

county shall be separately kept but collectively counted and the 
votes of the qualified electors of the county who do not reside within 
the limits of any incorporated city or town likewise shall be sepa¬ 
rately kept and separately counted, and unless there be a favoring 
majority of the votes cast within and a favoring majority of the 
votes cast without such collective cities and towns, the Charter 
shall not be adopted. It is expressly forbidden that any such Charter 
may inconsonantly affect the operation of the General Laws of 
the State relating to the judicial, tax, fiscal, educational, police, 
highway and health systems, or any other department of the State’s 
superior government. Nothing herein contained shall be deemed 
to authorize the adoption of a Charter provision inimicable to or 
inconsistent with the sovereignty and established public policies of 
this State, and no provision having such vice shall have validity as 
against the State. No Charter provision may operate to impair the 
exemption of homesteads as established by this Constitution and 
the Statutes relating thereto. 

(3) a. A Charter hereunder may provide: The continuance of a 
County Commissioners’ Court, as now constituted, to serve as the 
governing body of a county to operate hereunder; or, may provide 
for a governing body otherwise constituted, which shall be elective, 
and service therein shall be upon such qualifications, for such terms, 
under such plan of representation, and upon such conditions of 
tenure and compensation as may be fixed by any such Charter. The 
terms for service in such governing body may exceed two (2) 
years, but shall not exceed six (6) years. In any event, in addition 
to the powers and duties provided by any such Charter, such gov¬ 
erning body shall exercise all powers, and discharge all duties 
which, in the absence of the provisions hereof, would devolve by 
law on County Commissioners and County Commissioners’ Courts. 
Further, any such Charter may provide for the organization, re¬ 
organization, establishment and administration of the government 
of the county, including the control and regulation of the perform¬ 
ance of and the compensation for all duties required in the conduct 
of the county affairs, subject to the limitations herein provided. 

b. A Charter hereunder may provide that Judges of County 
Courts (including that County Court designated in this Constitu¬ 
tion), and Justices of the Peace be compensated upon a salary basis 
in lieu of fees. The jurisdiction of the County Court designated 
in this Constitution, and the duties of the Judges thereof, may be 
confined to that general jurisdiction of a probate Court which else- 


56 


THE CONSTITUTION OF THE STATE OF TEXAS 


where is defined in this Constitution. The office of Justice of the 
Peace may be made either elective or appointive. Other than as 
herein provided, no such Charter shall provide for altering the 
jurisdiction or procedure of any Court. The duties of District At¬ 
torney and/or County Attorney may be confined to representing 
the State in civil cases to which the State is a party and to enforce¬ 
ment of the State’s Penal Code, and the compensation of said at¬ 
torneys may be fixed on a salary basis in lieu of fees. 

c. Save as herein above and hereinafter otherwise provided, such 
Charters, within the limits expressed therein, may invest the gov¬ 
erning body to be established for any county electing to operate 
hereunder with the power to create, consolidate or abolish any 
office or department, whether created by other provisions of the 
Constitutions or by statute, define the duties thereof, fix the com¬ 
pensation for service therein, make the same elective or appointive 
and prescribe the time, qualifications and conditions for tenure in 
any such office; save, that no such Charter, other than as herein¬ 
before authorized, shall provide to regulate the status, service, 
duties or compensation of members of the Legislature, Judges of 
the Courts, District Attorneys, County Attorneys, or any office 
whatever by the law of the State required to be filled by an election 
embracing more than one county. Excepting herefrom nomina¬ 
tions, elections or appointments to offices, the terms whereof may 
not have expired prior to the adoption of this Amendment to the 
Constitution, at such time as a Charter provision adopted hereunder 
may be in effect (save as to those offices which must continue to be 
elective, as herein elsewhere specified), all terms of county officers 
and all contracts for the giving of service by deputies under such 
officers, may be subject to termination by the administrative body 
of the county, under an adopted Charter so providing, and there 
shall be no liability by reason thereof. 

d. Any county electing to operate hereunder shall have the power, 
by Charter provision, to levy, assess and collect taxes, and to fix 
the maximum rate for ad valorem taxes to be levied for specific 
purpose, in accordance with the Constitution and laws of this State, 
provided, however, that the limit of the aggregate taxes which may 
be levied, assessed and collected hereunder shall not exceed the limit 
or total fixed, or hereafter to be fixed, by this Constitution to con¬ 
trol counties, and the annual assessment upon property, both real, 
personal and mixed, shall be a first superior and prior lien thereon. 

e. In addition to the powers herein provided, and in addition to 



57 


THE CONSTITUTION OF THE STATE OF TEXAS 

powers included in County Home Rule Charters, any county may, 
by a majority vote of the qualified electors of said county, amend 
its Charter to include other powers, functions, duties and rights 
which now or hereafter may be provided by this Constitution and 
the statutes of the State for counties. 

(4) . Any county operating hereunder shall have the power to 
borrow money for all purposes lawful under its Charter, to include 
the refunding of a lawful debt, in a manner conforming to the Gen¬ 
eral Laws of the State, and may issue therefor its obligations. Such 
obligations, other than those to refund a lawful debt, shall not be 
valid unless authorized by a majority of all votes cast by those 
resident qualified votes of the area affected by the taxes required to 
retire such obligations, who may vote thereon. In case of county 
obligations, maturing after a period of five (5) years, the same 
shall be issued to mature serially, fixing the first maturity of prin¬ 
cipal at a time not to exceed two (2) years next after the date of 
the issuance of such obligations. Such obligations may pledge the 
full faith and credit of the county; but in no event shall the aggre¬ 
gate obligations so issued, in principal amount outstanding at any 
one time, exceed the then existing Constitutional limits for such 
obligations and such indebtedness and its supporting tax shall con¬ 
stitute a first and superior lien upon the property taxable in such 
county. No obligation issued hereunder shall be valid unless prior 
to the time of the issuance thereof there be levied a tax sufficient 
to retire the same as it matures, which tax shall not exceed the 
then existing Constitutional limits. 

(5) . Such Charter may authorize the governing body of a county 
operating hereunder to prescribe the schedule of fees to be charged 
by the officers of the county for specified service, to be in lieu of 
the schedule for such fees prescribed by the General Laws of the 
State; and, to appropriate such fees to such funds as the Charter 
may prescribe; provided, however, no fee for a specified service 
shall exceed in amount the fee fixed by General Law for that same 
service. Such Charters as to all judicial officers, other than District 
Judges, may prescribe the qualifications for services, provided the 
standards therefor be not lower than those fixed by the General 
Laws of the State. 

(6) a. Subject to the express limitations upon the exercise of 
the powers by this subdivision to be authorized, such Charters may 
provide (or omit to provide) that the governmental and/or pro¬ 
prietary functions of any city, town, district or other defined po- 


58 


THE CONSTITUTION OF THE STATE OF TEXAS 


litical subdivision (which is a governmental agency and embraced 
within the boundaries of the county) be transferred, either as to 
some or all of the functions thereof, and yielded to the control of 
the administrative body of the county. No such transfer or yielding 
of functions may be effected, unless the proposal is submitted to a 
vote of the people, and, unless otherwise provided by a two-thirds 
vote of the total membership of each House of the Legislature, such 
a proposal shall be submitted as a separate issue, and the vote within 
and without any such city, town, district, or other defined govern¬ 
mental entity, shall be separately cast and counted, and unless two- 
thirds of the qualified votes cast within the yielding defined govern¬ 
mental entity, and a majority of the qualified votes cast in the 
remainder of the county, favor the proposed merger, it shall not be 
effected. In case of the mergers hereby authorized, without express 
Charter provision therefor, in so far as may be required to make 
effective the object of the proposed merger, the county shall suc¬ 
ceed to all the appropriate lawful powers, duties, rights, procedures, 
restrictions and limitations which prior to the merger were reposed 
in, or imposed upon, the yielding governmental agency. Particu¬ 
larly, it is provided that the power to create funded indebtedness 
and to levy taxes in support thereof may be exercised only by such 
procedures, and within such limits, as now are, or hereafter may 
be, provided by law to control such appropriate other governmental 
agencies were they to be independently administered. Such mergers 
may be effected under proposed contracts between the county and 
any such yielding governmental agency, to be approved at an elec¬ 
tion as hereinbefore provided for. In order to increase governmen¬ 
tal efficiency and effect economy the county may contract with the 
principal city of the county to perform one or more of its functions, 
provided such contracts shall not be valid for more than two (2) 
years. 

b. In case of the partial or complete merger of the government 
of a city operating under a Home Rule Charter, with the govern¬ 
ment of a county operating hereunder, those city Charter provisions 
affected thereby shall cease to control, and the county Charter pro¬ 
visions shall control. 

c. When any embraced incorporated city or town elects to merge 
its governmental functions with those of the county under the pro¬ 
visions hereof, such Charter may provide for defining or redefining 
the boundaries of such cities and towns, provided, however, that 
in defining or redefining the boundaries of such cities and towns, 


59 


THE CONSTITUTION OF THE STATE OF TEXAS 

such boundaries may be extended only to include those areas con¬ 
tiguous to such cities as are urban in character; and as to such cities 
or towns and for the benefit thereof the county, in addition to the 
primary city and county tax herein authorized and any other law¬ 
ful district tax, may levy and collect taxes upon the property tax¬ 
able within such city or town as defined or redefined, within the 
limits authorized by Sections 4 and 5 of Article XI of this Con¬ 
stitution, (or any Amendment thereof) for incorporated cities ac¬ 
cording to the population, provided that no tax greater than that 
existing at the time of such merger or for any added purpose shall 
be imposed upon any such city or town unless authorized by a 
majority of all votes cast by the resident qualified voters of such 
city or town. 

d. Areas urban in character though not incorporated, under ap¬ 
propriate Charter provision may be defined as such by the govern¬ 
ing body of the county, provided, however, that no portion of the 
county shall be defined as an urban area unless it has sufficient 
population to entitle it to incorporate under the then existing laws 
of the State; and no such urban area, when created, shall be vested 
with any taxing or bonding power which it would not possess if 
it were operating as a separate incorporated unit under the then 
existing Constitutional and Statutory provisions of this State; and 
provided further that the governing body of the county for the gov¬ 
ernment of such areas shall have and exercise all powers and au¬ 
thority granted by law to the governing bodies of similar areas 
when separately incorporated as a city or town, and such areas 
shall be subject to additional taxation within the same Constitu¬ 
tional limits as control taxation for a city or a town of like popula¬ 
tion. Likewise such Charter may provide for the governing board 
of the county subject to existing Constitutional and statutory pro¬ 
visions to define, create and administer districts, and have and 
exercise the powers and authority granted by the Constitution and 
laws relative to the same. 

(7). No provision of this Constitution inconsonant with the pro¬ 
visions of this Section 3, of Article IX, shall be held to control the 
provisions of a Charter adopted hereunder, and conforming here¬ 
with. Charters adopted hereunder shall make appropriate provision 
for the abandonment, revocation, and amendment thereof, subject 
only to the requirements that there must be a favoring majority of 
the vote cast upon such a proposal, by the qualified resident electors 
of the county; and, no Charter may forbid amendments thereof 


60 


THE CONSTITUTION OF THE STATE OF TEXAS 


for a time greater than two (2) years. The provisions hereof shall 
be self-executing, subject only to the duty of the Legislature to 
pass all laws (consistent herewith) which may be necessary to carry 
out the intent and purpose hereof. Further, the Legislature shall 
prescribe a procedure for submitting to decision, by a majority 
vote of the electors voting thereon, proposed alternate and elective 
charter provisions. 


ARTICLE X. 

RAIL ROADS. 

Sec. 1. Railroads Connecting at State Lines; Crossing; 
Continuous Lines. —Any railroad corporation or association, 
organized under the law for the purpose, shall have the right to 
construct and operate a railroad between any points within this 
State, and to connect at the State line with railroads of other States. 
Every Railroad company shall have the right, with its road, to 
intersect, connect with or cross any other railroad; and shall re¬ 
ceive and transport each the other’s passengers, tonnage and cars, 
loaded or empty, without delay or discrimination, under such regu¬ 
lations as shall be prescribed by law. 

Section 2. Public Highways; Common Carriers; Duty of 
the Legislature; Fixing Rates. —Railroads heretofore con¬ 
structed or which may hereafter be constructed in this state are 
hereby declared public highways, and railroad companies, common 
carriers. The Legislature shall pass laws to regulate railroad, freight 
and passenger tariffs, to correct abuses and prevent unjust discrimi¬ 
nation and extortion in the rates of freight and passenger tariffs on 
the different railroads in this state, and enforce the same by ade¬ 
quate penalties; and to the further accomplishment of these ob¬ 
jects and purposes, may provide and establish all requisite means 
and agencies invested with such powers as may be deemed adequate 
and advisable. 

Sec. 3. Railroads to Keep Public Office in State; Direc¬ 
tors ; Annual Report. —Every railroad or other corporation, 
organized or doing business in this State under the laws or au¬ 
thority thereof, shall have and maintain a public office or place in 
this State for the transaction of its business, where transfers of 
stock shall be made and where shall be kept for inspection by the 
stockholders of such corporations, books, in which shall be recorded 


61 


THE CONSTITUTION OF THE STATE OF TEXAS 

the amount of capital stock subscribed, the names of the owners 
of the stock, the amounts owned by them respectively, the amount 
of stock paid, and by whom, the transfer of said stock, with the 
date of the transfer, the amount of its assets and liabilities, and 
the names and places of residence of its officers. The directors of 
every railroad company shall hold one meeting annually in this 
State, public notice of which shall be given thirty days previously, 
and the President or Superintendent shall report annually, under 
oath, to the Comptroller or Governor, their acts and doings, which 
report shall include such matters relating to railroads as may be 
prescribed by law. The Legislature shall pass laws enforcing by 
suitable penalties the provisions of this Section. 

Sec. 4. Rolling Stock for Railroad Property Not Exempt 
From Execution. —The rolling stock and all other movable prop¬ 
erty belonging to any railroad company or corporation in this State 
shall be considered personal property, and its real and personal 
property, or any part thereof, shall be liable to execution and sale 
in the same manner as the property of individuals; and the Legis¬ 
lature shall pass no laws exempting any such property from exe¬ 
cution and sale. 

Sec. 5. Railroads Shall Not Consolidate With Competing 
Lines. —No railroad or other corporation, or the lessees, purchas¬ 
ers or managers of any railroad corporation, shall consolidate the 
stock, property or franchises of such corporation, with, or lease 
or purchase the works or franchises of, or in any way control any 
railroad corporation owning or having under its control a parallel 
or competing line; nor shall any officer of such railroad corpo¬ 
ration act as an officer of any other railroad corporation owning or 
having the control of a parallel or competing line. 

Sec. 6. No Railroad Shall Consolidate With a Foreign 
Road. —No railroad company organized under the laws of this 
State, shall consolidate by private or judicial sale or otherwise 
with any railroad company organized under the laws of any other 
State or of the United States. 

Sec. 7. No Street or Public Highway Shall Be Used for 
the Construction of Street Railways Without the Consent 
of the Local Authorities Having Control of the Street or 
Highway. —No law shall be passed by the Legislature granting the 
right to construct and operate a street railroad within any city, 


62 


THE CONSTITUTION OF THE STATE OF TEXAS 


town, or village or upon any public highway, without first acquir¬ 
ing the consent of the local authorities having control of the street 
or highway proposed to be occupied by such street railroad. 

Sec. 8. Conditions Upon Which Railroad Corporations 
May Receive the Benefit of Future Legislation.— No rail¬ 
road corporation in existence at the time of the adoption of this 
Constitution, shall have the benefit of any future legislation, except 
on condition of complete acceptance of all the provisions of this 
Constitution applicable to railroads. 

Sec. 9. Under Certain Conditions Railroads Must Be 
Constructed Through County Seats. —No railroad hereafter 
constructed in this State, shall pass within a distance of three miles 
of any county seat, without passing through the same, and estab¬ 
lishing and maintaining a depot therein unless prevented by natural 
obstacles, such as streams, hills or mountains; provided, such town 
or its citizens shall grant the right of way through its limits and 
sufficient ground for ordinary depot purposes. 


ARTICLE XI. 

MUNICIPAL CORPORATIONS. 

Sec. 1. Counties Are Legal Subdivisions of the State.— 
The several Counties of this State are hereby recognized as legal 
subdivisions of the State. 

Sec. 2. Public Buildings and Roads. —The construction of 
Jails, Court-houses and Bridges and the establishment of County 
Poor Houses and Farms, and the laying out, construction and re¬ 
pairing of County Roads shall be provided for by general laws. 

Sec. 3. No County or Municipal Corporation Shall Be¬ 
come a Subscriber to the Capital Stock of Any Private 
Corporation or Make any Donation to the Same. —No 
County, City, or other Municipal Corporation shall hereafter be¬ 
come a subscriber to the capital of any Private Corporation or 
Association, or make any appropriation or donation to the same, 
or in any wise loan its credit; but this shall not be construed to in 
any way affect any obligation heretofore undertaken pursuant to 
law. 


THE CONSTITUTION OF THE STATE OF TEXAS 


63 


Sec. 4. Cities and Towns Having a Population of Less 
Than 5 000 Inhabitants to Be Chartered by General Laws; 
Dues to Be Collected in Current Money. —Cities and towns 
having a population of five thousand or less may be chartered 
alone by general law. They may levy, assess and collect such taxes 
as may be authorized by law, but no tax for any purpose shall ever 
be lawful for any one year which shall exceed one and one-half per 
cent of the taxable property of such city; and all taxes shall be col¬ 
lectible only in current money, and all licenses and occupation taxes 
levied, and all fines, forfeitures and penalties accruing to said cities 
and towns shall be collectible only in current money. 

Sec. 5. Cities of More Than 5000 Inhabitants May by a 
Majority Vote of the Qualified Voters Adopt Their Own 
Charter ; Limitation as to Taxation and Debt. —Cities having 
more than five thousand ( 5000) inhabitants may, by a majority vote 
of the qualified voters of said city, at an election held for that pur¬ 
pose, adopt or amend their charters, subject to such limitations as 
may be prescribed by the Legislature, and providing that no charter 
or any ordinance passed under said charter shall contain any pro¬ 
vision inconsistent with the Constitution of the State or of the 
general laws enacted by the Legislature of this State; said cities 
may levy, assess and collect such taxes as may be authorized by law 
or by their charters; but no tax for any purpose shall ever be law¬ 
ful for any one year which shall exceed two and one-half per cent, 
of the taxable property of such city and no debt shall ever be 
created by any city unless at the same time provision be made to 
assess and collect annually a sufficient sum to pay the interest 
thereon and creating a sinking fund of at least two per cent 
thereon; and provided further, that no city charter shall be altered, 
amended or repealed oftener than every two years. 

Sec. 6. Municipal Taxation. —Counties cities and towns are 
authorized in such mode as may now or may hereafter be provided 
by law, to levy, assess and collect the taxes necessary to pay the in¬ 
terest and provide a sinking fund to satisfy any indebtedness here¬ 
tofore legally made and undertaken; but all such taxes shall be 
assessed and collected separately from that levied, assessed and 
collected for current expenses of municipal government, and shall 
when levied specify in the act of levying the purpose therefor, and 
such taxes may be paid in the coupons bonds or other indebtedness 
for the payment of which such tax may have been levied. 


64 THE CONSTITUTION OF THE STATE OF TEXAS 


Sec. 7. Taxation of Seawalls, Etc. ; Restrictions and Limi¬ 
tations; Eminent Domain. —All counties and cities bordering 
on the coast of the Gulf of Mexico are hereby authorized upon a 
vote of a two-thirds majority of the resident property taxpayers 
voting thereon at an election called for such purpose to levy and 
collect such tax for construction of sea walls, breakwaters, or sani¬ 
tary purposes, as may now or may hereafter be authorized by law, 
and may create a debt for such works and issue bonds in evidence 
thereof. But no debt for any purpose shall ever be incurred in any 
manner by any city or county unless provision is made, at the 
time of creating the same, for levying and collecting a sufficient 
tax to pay the interest thereon and provide at least two per cent 
(2%) as a sinking fund; and the condemnation of the right of 
way for the erection of such works shall be fully provided for. 

Sec. 8. State Aid for Seawalls, Etc. —The Counties and 
Cities on the Gulf Coast being subject to calamitous overflows, and 
a very large proportion of the general revenue being derived from 
those otherwise prosperous localities, The Legislature is especially 
authorized to aid by donation of such portion of the public domain 
as may be deemed proper, and in such mode as may be provided 
by law, the construction of Sea Walls, or Breakwaters, such aid to 
be proportioned to the extent and value of the works constructed, 
or to be constructed, in any locality. 

Sec. 9. Public Buildings, Etc. —The property of counties, 
cities and towns, owned and held only for public purposes, such 
as public buildings and the sites therefor, Fire engines and the fur¬ 
niture thereof, and all property used, or intended for extinguish¬ 
ing fires, public grounds and all other property devoted exclusively 
to the use and benefit of the public shall be exempt from forced 
sale and from taxation, provided, nothing herein shall prevent the 
enforcement of the vendors lien, the mechanics or builders lien, or 
other liens now existing. 

Sec. 10. City or Town May Be School District; Special 
Tax. —The Legislature may constitute any city or town a separate 
and independent school district. And when the citizens of any city 
or town have a charter, authorizing the city authorities to levy and 
collect a tax for the support and maintenance of a public institu¬ 
tion of learning, such tax may hereafter be levied and collected, if 
at an election, held for that purpose, two thirds of the taxpayers of 
such city or town shall vote for such tax. 



THE CONSTITUTION OF THE STATE OF TEXAS 


65 


ARTICLE XII. 

PRIVATE CORPORATIONS. 

Sec. i. Corporations Created by General Laws. —No Pri¬ 
vate Corporations shall be created except by general laws. 

Sec. 2. General Laws to Be Enacted. —General laws shall 
be enacted providing for the creation of Private Corporations, and 
shall therein provide fully for the adequate protection of the pub¬ 
lic and of the individual stockholders. 

Sec. 3. Franchise to Be Under Legislative Control. —The 
right to authorize and regulate freights, tolls, wharfage or fares 
levied and collected or proposed to be levied and collected by indi¬ 
viduals, companies or corporations for the use of highways, land¬ 
ings, wharves, bridges and ferries, devoted to public use, has never 
been and shall never be relinquished or abandoned by the State, 
but shall always be under Legislative control and depend upon 
Legislative authority. 

Sec. 4. Charges and Collections of Freights, Wharfage, 
Fares or Tolls for the Use of Property Devoted to the Pub¬ 
lic Prohibited Except Specially Authorized by Law. —The 
first Legislature assembled after the adoption of this Constitution 
shall provide a mode of procedure by the Attorney General and 
District or County Attorneys in the name and behalf of the State 
to prevent and punish the demanding and receiving or collection 
of any and all charges, as freight, wharfage, fares, or tolls, for the 
use of property devoted to the public, unless the same shall have 
been specially authorized by law. 

Section 5. Freights, Wharfage, Fares or Tolls Subject to 
Legislative Control.— All laws granting the right to demand and 
collect freights, fares, tolls or wharfage shall at all times be subject 
to amendment, modification or repeal by the Legislature. 

Sec. 6. The Issuance of Stocks and Bonds by Corporations 
Prohibited Except for Money Paid and Labor Done, Etc.— 
No corporation shall issue stock or bonds except for money paid, 
labor done or property actually received, and all fictitious increase 
of stock or indebtedness shall be void. 


66 


THE CONSTITUTION OF THE STATE OF TEXAS 


Sec. 7. Vested Rights Protected. —Nothing in this Article 
shall be construed to divest or affect, rights guaranteed by any 
existing grant or statute, of this State, or of the Republic of Texas. 


ARTICLE XIII. 

SPANISH AND MEXICAN LAND TITLES. 

Sec. 1. Fines, Penalties and Escheat. —All fines, penal¬ 
ties, forfeitures and escheats, which have heretofore accrued to 
the Republic and State of Texas, under their constitutions and 
laws, shall accrue to the State under this Constitution; and the 
Legislature shall provide a method for determining what lands 
have been forfeited, and for giving effect to escheats; and all such 
rights of forfeiture and escheats to the State shall, ipso facto, inure 
to the protection of the innocent holders of junior titles, as pro¬ 
vided in sections two, three and four of this Article. 

Sec. 2. Lands Not Recorded, Archived or in Possession.— 
Any claim of title or right to land in Texas, issued prior to the 
13th day of November, 1835, not duly recorded in the county where 
the land was situated at the time of such record, or not duly ar¬ 
chived in the General Land Office; or not in the actual possession 
of the grantee thereof, or some person claiming under him, prior 
to the accruing of junior title thereto from the sovereignty of the 
soil, under circumstances reasonably calculated to give notice to 
said junior grantee, has never had, and shall not have, standing or 
effect against such junior title, or color of title, acquired without 
such or actual notice of such prior claim of title or right; and no 
condition annexed to such grants, not archived, or recorded, or 
occupied, as aforesaid, has been, or ever shall be released or waived, 
but actual performance of all such conditions shall be proved by 
the person or persons claiming under such title or claim of right in 
order to maintain action thereon, and the holder of such junior 
title, or color of title, shall have all the rights of the government 
which have heretofore existed, or now exist, arising from the non¬ 
performance of all such conditions. 

Sec. 3. Non-Payment of Taxes; Presumptions. —Non-pay¬ 
ment of taxes on any claim of title to land, dated prior to the 13th 
day of November, 1835, not recorded, or archived, as provided in 


THE CONSTITUTION OF THE STATE OF TEXAS 67 

Section 2, by the person or persons so claiming, or those under 
whom he or they so claim, from that date up to the date of the 
adoption of this Constitution, shall be held to be a presumption that 
the right thereto has reverted to the State, and that said claim is 
a stale demand, which presumption shall only be rebutted by pay¬ 
ment of all taxes on said lands, State, County, and City, or Town, 
to be assessed on the fair value of such lands by the Comptroller, 
and paid to him, without commutation or deduction for any part 
of the above period. 

Sec. 4. Titles Not to Be Recorded or Archived; Actual 
Possession; ‘‘Duly Recorded” Defined.— No claim of title or 
right to land, which issued prior to the thirteenth day of Novem¬ 
ber, 1835, which has not been duly recorded in the county where 
the land was situated at the time of such record, or which has not 
been duly archived in the General Land Office, shall ever hereafter 
be deposited in the General Land Office, or recorded in this State, or 
delineated on the maps, or used as evidence in any of the courts of 
this State, and the same are stale claims; but this shall not affect 
such rights or presumptions as arise from actual possession. By the 
words “duly recorded” as used in Sections two and four of this 
Article, it is meant that such claim of title or right to land shall have 
been recorded in the proper office, and that mere errors in the cer¬ 
tificate of registration; or informality, not affecting the fairness 
and good faith of the holder thereof, with which the record was 
made, shall not be held to vitiate such record. 

Sec. 5. Certain Claims Declared Void. —All claims, loca¬ 
tions, surveys, grants and titles, of any kind, which are declared 
null and void by the Constitution of the Republic or State of Texas, 
are, and the same shall remain forever null and void. 

Sec. 6. Forgers of Land Titles. —The Legislature shall pass 
stringent laws for the detection and conviction of all forgers of 
land titles, and may make such appropriations of money for that 
purpose as may be necessary. 

Sec. 7. Certain Sections Not a Repeal of Laws. —Sections 
two, three, four and five of this Article, shall not be so construed 
as to set aside or repeal any law or laws of the Republic or State of 
Texas, releasing the claimants of head-rights of colonists of a 
league of land, or less from compliance with the conditions on which 
their grants were made. 


68 


THE CONSTITUTION OF THE STATE OF TEXAS 


ARTICLE XIV 

PUBLIC LANDS AND LAND OFFICE. 

Sec. i. General Land Office; Grants to Be Registered 
in; Land Office to Be Self-Sustaining. —There shall be one 
General Land Office in the State, which shall be at the Seat of 
Government, where all Land Titles which have emanated or may 
hereafter emanate from the State shall be registered, except those 
titles the registration of which may be prohibited by this Constitu¬ 
tion. It shall be the duty of the Legislature at the earliest practi¬ 
cable time to make the Land Office self sustaining, and from time 
to time the Legislature may establish such subordinate Offices as 
may be deemed necessary. 

Sec. 2. Revival, Survey and Location of Genuine Certifi¬ 
cates. —All unsatisfied genuine Land Certificates barred by Sec¬ 
tion four, Article ten, of the Constitution of 1869, by reason of 
the holders or owners thereof failing to have them surveyed and 
returned to the Land Office by the first day of January, 1875, are 
hereby revived. All unsatisfied genuine Land Certificates now in 
existence shall be surveyed and returned to the General Land 
Office within five years after the adoption of this Constitution, or 
be forever barred; and all genuine Land Certificates hereafter 
issued by the State shall be surveyed and returned to the General 
Land Office within five years after issuance, or be forever barred; 
Provided, that all genuine Land Certificates heretofore or here¬ 
after issued shall be located, surveyed or patented, only upon vacant 
and unappropriated public domain and not upon any land titled or 
equitably owned under color of title from the sovereignty of the 
State, evidence of the appropriation of which is on the county 
records or in the General Land Office; or when the appropriation 
is evidenced by the occupation of the owner, or of some person 
holding for him. 

Sec. 3. Grants to Railways. —The Legislature shall have no 
power to grant any of the lands of this State to any railway com¬ 
pany except upon the following restrictions and conditions. 

First That there shall never be granted to any such corporation 
more than sixteen sections to the mile, and no reservation of any 
part of the public domain for the purpose of satisfying such grant 
shall ever be made. 


69 


THE CONSTITUTION OF THE STATE OF TEXAS 

Second That no land certificate shall be issued to such com¬ 
pany, until they have equipped, constructed and in running order 
at least ten miles of road, and on the failure of such company to 
comply with the terms of its charter, or to alienate its land at a 
period to be fixed by law, in no event to exceed twelve years from 
the issuance of the patent, all said land shall be forfeited to the 
State and become a portion of the public domain, and liable to lo¬ 
cation and survey. The Legislature shall pass general laws, only, to 
give effect to the provisions of this section. 

Sec. 4. Sale of Lands to Actual Settlers. —No certificate 
for land shall be sold at the Land Office except to actual settlers 
upon the same, and in lots not to exceed one hundred and sixty 
acres. 

Sec. 5. Alienation of Railroad Grants ; Duty of Attorney 
General.— All lands heretofore or hereafter granted to railway 
companies where the charter or law of the State required or shall 
hereafter require their alienation within a certain period, on pain 
of forfeiture, or is silent on the subject of forfeiture, and which 
lands have not been or shall not hereafter be alienated, in con¬ 
formity with the terms of their charters, and the laws under which 
the grants were made, are hereby declared forfeited to the State 
and subject to pre-emption, location and survey, as other vacant 
lands. All lands heretofore granted to said railroad companies to 
which no forfeiture was attached, on their failure to alienate, are 
not included in the foregoing clause, but in all such last named 
cases it shall be the duty of the Attorney General in every instance 
where alienations have been or hereafter may be made, to inquire 
into the same, and if such alienation has been made in fraud of 
the rights of the State and is colorable only, the real and beneficial 
interest being still in such corporation, to institute legal proceedings 
in the county where the seat of government is situated to forfeit 
such lands to the State, and if such alienation be Judicially ascer¬ 
tained to be fraudulent and colorable as aforesaid, such lands shall 
be forfeited to the State and become a part of the vacant public 
domain, liable to pre-emption, location and survey. 

Sec. 6. Grants to Heads of Families and Single Men.— 
To every head of a family without a homestead there shall be 
donated one hundred and sixty acres of Public Land, upon condi¬ 
tion that he will select and locate said land, and occupy the same 


70 


THE CONSTITUTION OF THE STATE OF TEXAS 


three years and pay the Office fees due thereon. To all single men 
of eighteen years of age and upward shall be donated eighty acres of 
Public Land, upon the terms and conditions prescribed for heads 
of families. 

Sec. 7. Mines and Minerals Released to Owners of the 
Soil. —The State of Texas hereby releases to the owner or owners 
of the soil all mines and minerals that may be on the same, subject 
to taxation as other property. 

Sec. 8. Time Extended to Comply With Act of 1870.—Per¬ 
sons residing between the Nueces river and the Rio Grande, and 
owning grants for lands which emanated from the government of 
Spain, or that of Mexico which grants have been recognized and 
validated by the State by acts of the Legislature, approved Febru¬ 
ary 10th 1852. August 15th 1870, and other acts, and who have 
been prevented from complying with the requirements of said acts 
by the unsettled condition of the country, shall be allowed until the 
first day of January 1880, to complete their surveys, and the plots 
thereof, and to return their field notes to the General Land Office; 
and all claimants failing to do so shall be forever barred; pro¬ 
vided, nothing in this section shall be so construed as to validate 
any titles not already valid, or to interfere with the rights of third 
persons. 

ARTICLE XV. 

IMPEACHMENT. 

Sec. i. Power of Impeachment Vested in the House of 
Representatives. —The power of impeachment shall be vested 
in the House of Representatives. 

Sec. 2. Trial by Senate. —Impeachment of the Governor, 
Lieutenant Governor, Attorney General, Treasurer, Commissioner 
of the General Land Office, Comptroller and the Judges of the 
Supreme Court, Court of Appeals and District Court shall be tried 
by the Senate. 

Sec. 3. Oath of Senators. —When the Senate is sitting as a 
Court of Impeachment, the Senators shall be on oath, or affirma¬ 
tion impartially to try the party impeached, and no person shall be 
convicted without the concurrence of two-thirds of the Senators 
present. 


THE CONSTITUTION OF THE STATE OF TEXAS 71 

Sec. 4. Judgment; Party Convicted Subject to Indictment 
Under the Criminal Laws. —Judgment in cases of impeachment 
shall extend only to removal from office, and disqualification from 
holding any office of honor trust or profit under this State. A Party 
convicted on impeachment shall also be subject to indictment trial 
and punishment according to law. 

Sec. 5. Officers Suspended During Pending Proceedings. 
—All officers against whom articles of impeachment may be pre¬ 
ferred shall be suspended from the exercise of the duties of their 
office, during the pendency of such impeachment. The Governor 
may make a provisional appointment to fill the vacancy occasioned 
by the suspension of an officer until the decision on the impeach¬ 
ment. 

Sec. 6 . Removal of District Judges. —Any Judge of the Dis¬ 
trict Courts of the State who is incompetent to discharge the duties 
of his office, or who shall be guilty of partiality, or oppression, or 
other official misconduct, or whose habits and conduct are such as 
to render him unfit to hold such office, or who shall negligently fail 
to perform his duties as Judge; or who shall fail to execute in a 
reasonable measure the business in his courts, may be removed by 
the Supreme Court. The Supreme Court shall have original juris¬ 
diction to hear and determine the causes aforesaid when presented 
in writing upon the oaths taken before some Judge of a court of 
record of not less than ten lawyers, practicing in the courts held by 
such Judge, and licensed to practice in the Supreme Court; said 
presentment to be founded either upon the knowledge of the per¬ 
sons making it or upon the written oaths as to the facts of credit¬ 
able witnesses. The Supreme Court may issue all needful process 
and prescribe all needful rules to give effect to this section. Causes 
of this kind shall have precedence and be tried as soon as prac¬ 
ticable. 

Sec. 7. Trial and Removal of Other Officers. —The Legis¬ 
lature shall provide by law for the trial and removal from office of 
all officers of this State, the modes for which have not been pro¬ 
vided in this Constitution. 

ADDRESS. 

Sec. 8. Removal of Judges of Supreme Court and Court of 
Appeals and of District Courts. —The Judges of the Supreme 


72 


THE CONSTITUTION OF THE STATE OF TEXAS 


Court, Court of Appeals and District Courts, shall be removed by 
the Governor on the address of two-thirds of each House of the 
Legislature, for wilful neglect of duty, incompetency, habitual 
drunkenness, oppression in office, or other reasonable cause which 
shall not be sufficient ground for impeachment; provided however, 
that the cause or causes for which such removal, shall be required, 
shall be stated at length in such address and entered on the journals 
of each House; and provided further, that the cause or causes 
shall be notified to the Judge so intended to be removed, and he 
shall be admitted to a hearing in his own defense before any vote 
for such address shall pass, and in all such cases, the vote shall be 
taken by yeas and nays and entered on the journals of each House 
respectively. 


ARTICLE XVI. 

GENERAL PROVISIONS. 

Sec. i. Official Oath. —Members of the Legislature, and 
all officers, before they enter upon the duties of their offices, shall 
take the following Oath or Affirmation: I, (-) do sol¬ 

emnly swear, (or affirm), that I will faithfully and impartially 

discharge and perform all the duties incumbent upon me as-, 

according to the best of my skill and ability, agreeably to the 
Constitution and laws of the United States and of this State; and 
I do further solemnly swear, (or affirm), that since the adop¬ 
tion of the Constitution of this State, I, being a citizen of this State, 
have not fought a duel with deadly weapons, within this State nor 
out of it, nor have I sent or accepted a challenge to fight a duel 
with deadly weapons, nor have I acted as second in carrying a chal¬ 
lenge, or aided, advised or assisted any person thus offending; And 
I furthermore solemnly swear, (or affirm), that I have not directly 
nor indirectly paid, offered or promised to pay, contributed, nor 
promised to contribute any money, or valuable thing, or promised 
any public office or employment, as a reward for the giving or with¬ 
holding a vote at the election at which I was elected, (or if the 
office is one of appointment, to secure my appointment.) So help 
me God. 

Sec. 2. Right of Suffrage to Be Protected ; Criminals Dis¬ 
franchised. —Laws shall be made to exclude from office, serving 
on juries, and from the right of suffrage, those who may have been 




73 


THE CONSTITUTION OF THE STATE OF TEXAS 

or shall hereafter be convicted of bribery, perjury, forgery, or 
other high crimes. The privilege of free suffrage shall be protected 
by laws regulating elections and prohibiting under adequate penal¬ 
ties all undue influence therein from power, bribery, tumult, or 
other improper practice. 

Sec. 3. Fines and Costs to Be Discharged by Manual 
Labor. —The Legislature shall make provision whereby persons 
convicted of misdemeanors and committed to the County jails in 
default of payment of fines and costs, shall be required to dis¬ 
charge such fines and costs by manual labor, under such regulations 
as may be prescribed by law. 

Sec. 4. Dueling Prohibited. —Any citizen of this State who 
shall, after the adoption of this Constitution, fight a duel with 
deadly weapons, or send or accept a challenge to fight a duel with 
deadly weapons, either within this State or out of it, or who shall 
act as second, or knowingly assist in any manner those thus offend¬ 
ing, shall be deprived of the right of suffrage, or of holding any 
office of trust or profit under this State. 

Sec. 5. Bribery in Elections Disqualification for Holding 
Office. —Every person shall be disqualified from holding any 
office of profit, or trust, in this State, who shall have been convicted 
of having given or offered a bribe to procure his election or appoint¬ 
ment. 

Sec. 6. Appropriations for Private Purposes Prohibited; 
Expenditures to Be Published. —No appropriation for private 
or individual purposes shall be made. A regular statement, under 
oath, and an account of the receipts and expenditures of all public 
money shall be published annually, in such manner as shall be pre¬ 
scribed by law. 

Sec. 7. No Paper to Circulate as Money. —The Legislature 
shall, in no case, have power to issue “Treasury Warrants,” Treas¬ 
ury Notes,” or paper of any description intended to circulate as 
money. 

Sec. 8. Counties May Provide Workhouses, Poorhouses 
and Farms. —Each County in the State may provide, in such man¬ 
ner as may be prescribed by law, a Manual Labor Poor House 
and Farm, for taking care of, managing, employing and supplying 
the wants of its indigent and poor inhabitants. 


74 


THE CONSTITUTION OF THE STATE OF TEXAS 

Sec. 9. Absence on Business of the State or United States 
Shall Not Forfeit a Residence Once Obtained. —Absence on 
business of the State, or of the United States, shall not forfeit a 
residence once obtained, so as to deprive anyone of the right of 
suffrage, or of being elected or appointed to any office under the 
exceptions contained in this Constitution. 

Sec. 10. Deductions From Salaries to Be Provided For.— 
The Legislature shall provide for deductions from the salaries of 
public officers who may neglect the performance of any duty that 
may be assigned them by law. 

Sec. 11. Usurious Interest Prohibited. —All contracts for a 
greater rate of interest than ten per centum per annum, shall be 
deemed usurious, and the first legislature after this amendment is 
adopted, shall provide appropriate pains and penalties to prevent 
the same; but when no rate of interest is agreed upon, the rate 
shall not exceed six per centum per annum. 

Sec. 12. Officers Not Eligible. —No member of Congress, 
nor person holding or exercising any office of profit or trust, under 
the United States, or either of them, or under any foreign power, 
shall be eligible as a member of the Legislature, or hold or exercise 
any office of profit or trust under this State. 

Sec. 13. Legislature Shall Pass Arbitration Laws. —It 
shall be the duty of the Legislature to pass such laws as may be 
necessary and proper to decide differences by arbitration, when the 
parties shall elect that method of trial. 

Sec. 14. Residence of Officers. —All civil officers shall reside 
within the State; and all district or county officers within their 
districts or counties, and shall keep their offices at such places as 
may be required by law; and failure to comply with this condition 
shall vacate the office so held. 

Sec. 15. Wife’s Separate Property. —All property, both real 
and personal, of the wife, owned or claimed by her before marriage, 
and that acquired afterward by gift, devise or descent, shall be her 
separate property; and laws shall be passed more clearly defining 
the rights of the wife, in relation as well to her separate property 
as that held in common with her husband. Laws shall also be 
passed providing for the registration of the wife’s separate prop¬ 
erty. 


THE CONSTITUTION OF THE STATE OF TEXAS 75 

Section 16. Banking Corporations. —The legislature shall by 
general laws, authorize the incorporation of corporate bodies with 
banking and discounting privileges, and shall provide for a system 
of State supervision, regulation and control of such bodies which 
will adequately protect and secure the depositors and creditors 
thereof. 

Each shareholder of such corporate body incorporated in this 
State, so long as he owns shares therein, and for twelve months 
after the date of any bona fide transfer thereof shall be personally 
liable for all debts of such corporate body existing at the date of 
such transfer, to an amount additional to the par value of such 
shares so owned or transferred, equal to the par value of such 
shares so owned or transferred. 

No such corporate body shall be chartered until all of the au¬ 
thorized capital stock has been subscribed and paid for in full in 
cash. Such body corporate shall not be authorized to engage in 
business at more than one place which shall be designated in its 
charter. 

No foreign corporation, other than the National banks of the 
United States, shall be permitted to exercise banking or discount¬ 
ing privileges in this State. 

Sec. 17. Officers to Perform Duties Until Successor Is 
Qualified.— All officers within this State shall continue to per¬ 
form the duties of their offices until their successors shall be duly 
qualified. 

Sec. 18. Vested Rights. —The rights of property and of action, 
which have been acquired under the Constitution and laws of the 
Republic and State, shall not be divested; nor shall any rights or 
actions which have been divested, barred, or declared null and void 
by the Constitution of the Republic and State, be re-invested, re¬ 
newed, or re-instated by this Constitution; but the same shall re¬ 
main precisely in the situation which they were before the adoption 
of this Constitution, unless otherwise herein provided; and pro¬ 
vided further, that no cause of action heretofore barred shall be 
revived. 

Sec. 19. Qualifications of Jurors. —The Legislature shall 
prescribe by law the qualifiation of grand and petit jurors. 

Sec. 20 . (a). The manufacture, sale, barter or exchange in the 
State of Texas of spirituous, vinous or malt liquors or medicated 


76 THE CONSTITUTION OF THE STATE OF TEXAS 

bitters capable of producing intoxication, or any other intoxicant 
whatever except vinous or malt liquors of not more than three and 
two-tenths per cent (3.2%) alcoholic content by weight (except 
for medicinal, mechanical, scientific or sacramental purposes) are 
each and all hereby prohibited. The Legislature shall enact laws 
to enforce this Section, and may from time to time prescribe regu¬ 
lations and limitations relative to the manufacture, sale, barter, 
exchange or possession for sale of vinous or malt liquors of not 
more than there and two-tenths per cent (3.2%) alcoholic con¬ 
tent by weight; provided the Legislature shall enact a law or laws 
whereby the qualified voters of any county, justice’s precinct, town 
or city may, by a majority vote of those voting, determine from 
time to time whether the sale for beverage purposes of vinous or 
malt liquors containing not more than three and two-tenths per 
cent (3.2%) alcohol by weight shall be prohibited within the pre¬ 
scribed limits; and provided further that in all counties in the 
State of Texas and in all political subdivisions thereof, wherein the 
sale of intoxicating liquors had been prohibited by local option elec¬ 
tions held under the laws of the State of Texas and in force at the 
time of the taking effect of Section 20, Article 16, of the Con¬ 
stitution of Texas, it shall continue to be unlawful to manufacture, 
sell, barter or exchange in any such county or in any such political 
subdivision thereof, any spirituous, vinous or malt liquors or medi¬ 
cated bitters, capable of producing intoxication or any other in¬ 
toxicant whatsoever, unless and until a majority of the qualified 
voters in said county or political subdivision thereof voting in an 
election held for such purpose shall determine it to be lawful to 
manufacture, sell, barter and exchange in said county or political 
subdivision thereof vinous or malt liquors containing not more than 
three and two-tenths per cent (3.2%) alcoholic content by weight, 
and the provision of this subsection shall be self enacting. 

(b) Until the Legislature shall prescribe other or different regu¬ 
lations on the subject, the sale of spirituous, vinous or malt liquors, 
or medicated bitters, capable of producing intoxication, or any other 
intoxicant whatever, for medicinal purposes shall be made only in 
cases of actual sickness and then only upon the prescription of a 
regular practicing physician, subject to the regulations applicable 
to sales under prescriptions in prohibited territory by virtue of 
Article 598, Chapter 7, Title 11, of the Penal Code of the State of 
Texas. 


THE CONSTITUTION OF THE STATE OF TEXAS 


77 


(c) This amendment is self-operative and until the Legislature 
shall prescribe other or different penalties, any person acting for 
himself or in behalf of another, or in behalf of any partnership, 
corporation or association of persons, who shall, after the adoption 
of this amendment violate any part of this Constitutional provision, 
shall be deemed guilty of a felony, and shall, upon conviction in a 
prosecution commenced, carried on and concluded in the manner 
prescribed by law in cases of felonies, be punished by confinement 
in the penitentiary for a period of time not less than one year nor 
more than five years, without the benefit of any law providing for 
suspended sentence. And the district courts and judges thereof, 
under their equity powers, shall have the authority to issue, upon 
suit of the Attorney General, injunctions against infractions or 
threatened infractions of any part of this constitutional provision. 

(d) Without affecting the provisions herein, intoxicating liquors 
are declared to be subject to the general police power of the State; 
and the Legislature shall have the power to pass any additional 
prohibitory laws, or laws in aid thereof, which it may deem 
advisable. 

(e) Liability for violating any liquor laws in force at the time 
of the adoption of this amendment shall not be affected by this 
amendment, and all remedies, civil and criminal, for such violations 
shall be preserved. 

Sec. 21. Stationery; Public Printing. —All stationery and 
printing, except proclamations and such printing as may be done 
at the Deaf and Dumb Asylum, paper, and fuel used in the Legis¬ 
lative and other departments of the government, except the Judi¬ 
cial Department, shall be furnished, and the printing and binding 
of the laws, journals and department reports, and all other printing 
and binding and the repairing and furnishing the halls and rooms 
used for the meetings of the Legislature and its committees, shall be 
performed under contract, to be given to the lowest responsible bid¬ 
der, below such maximum price, and under such regulations, as 
shall be prescribed by law. No member or officer of any department 
of the government shall be in any way interested in such contract; 
and all such contracts shall be subject to the approval of the Gover¬ 
nor, Secretary of State and Comptroller. 

Sec. 22. Fence Laws.— The Legislature shall have the power to 
pass such fence laws, applicable to any sub-division of the State, 
or counties, as may be needed to meet the wants of the people. 


78 


THE CONSTITUTION OF THE STATE OF TEXAS 


Sec. 23. Stock Laws. —The Legislature may pass laws for the 
regulation of live stock and the protection of stock raisers in the 
stock raising portion of the State, and exempt from the operation 
of such laws other portions, sections, or counties; and shall have 
power to pass general and special laws for the inspection of cattle, 
stock and hides and for the regulation of brands; provided, that 
any local law thus passed shall be submitted to the freeholders of 
the section to be affected thereby, and approved by them, before it 
shall go into effect. 

Sec. 24. Roads ; Convict Labor. —The Legislature shall make 
provision for laying out and working public roads, for the building 
of bridges, and for utilizing fines, forfeitures, and convict labor to 
all these purposes. 

Sec. 25. Drawbacks and Rebates in Freight, Insurance, 
Transportation, Storage, Etc., Prohibited. —That all draw¬ 
backs and rebatement of insurance, freight, transportation, car¬ 
riage, wharfage, storage, compressing, baling, repairing, or for any 
other kind of labor or service of, or to any cotton, grain, or any 
other produce or article of commerce in this State, paid or allowed 
or contracted for, to any common carrier, shipper, merchant, com¬ 
mission merchant, factor, agent, or middleman of any kind, not 
the true and absolute owner thereof, are forever prohibited, and 
it shall be the duty of the Legislature to pass effective laws punish¬ 
ing all persons in this State who pay, receive or contract for, or re¬ 
specting the same. 

Sec. 26. Homicide; Civil Action For. —Every person, corpo¬ 
ration, or company, that may commit a homicide, through wilful 
act, or omission, or gross neglect, shall be responsible, in exemplary 
damages, to the surviving husband, widow, heirs of his or her 
body, or such of them as there may be, without regard to any crimi¬ 
nal proceeding that may or may not be had in relation to the homi¬ 
cide. 

Sec. 27. Vacancies in Offices for Unexpired Terms Only. 
—In all elections to fill vacancies of office in this State, it shall be to 
fill the unexpired term only. 

Sec. 28. Wages Exempt From Garnishment. —No current 
wages for personal service shall ever be subject to garnishment. 

Sec. 29. Barratry to Be Prohibited.— The Legislature shall 
provide by law for defining and punishing barratry. 


THE CONSTITUTION OF THE STATE OF TEXAS 


79 


Section 30. Duration of Offices; Terms of Railroad Com¬ 
missioner.— The duration of all offices not fixed by this Constitu¬ 
tion shall never exceed two years; provided, that when a railroad 
commission is created by law it shall be composed of three Commis¬ 
sioners who shall be elected by the people at a general election for 
State officers, and their terms of office shall be six years; provided, 
railroad commissioners first elected after this amendment goes into 
effect shall hold office as follows: One shall serve two years, and 
one four years, and one six years; their terms to be decided by lot 
immediately after they shall have qualified. And one railroad com¬ 
missioner shall be elected every two years thereafter. In case of va¬ 
cancy in said office the Governor of the State shall fill said vacancy 
by appointment until the next general election. 

Sec. 30a. Board of Regents, Trustees, Managers, Etc.; 
Term of Office.— The Legislature may provide by law that the 
members of the Board of Regents of the State University and 
boards of trustees or managers of the educational, eleemosynary, 
and penal institutions of the State, and such boards as have been, 
or may hereafter be established by law, may hold their respective 
offices for the term of six (6) years, one-third of the members of 
such boards to be elected or appointed every two (2) years in such 
manner as the Legislature may determine; vacancies in such offices 
to be filled as may be provided by law,” and the Legislature shall 
enact suitable laws to give effect to this Section. 

Sec. 31. Qualifications of Physicians to Be Prescribed.— 
The Legislature may pass laws prescribing the qualifications of 
practitioners of medicine in this State, and to punish persons for 
malpractice, but no preference shall ever be given by law to any 
schools of medicine. 

Sec. 32. Board of Health and Vital Statistics. —The Legis¬ 
lature may provide by law for the establishment of a Board of 
Health and Vital Statistics, under such rules and regulations as it 
may deem proper. 

Section 33. The Accounting Officers of this State shall neither 
draw nor pay a warrant upon the Treasury in favor of any person, 
for salary or compensation as agent, officer or appointee, who holds 
at the same time any other office or position of honor, trust or 
profit, under this State or the United States, except as prescribed 
in this Constitution. Provided, that this restriction as to the draw- 


80 


THE CONSTITUTION OF THE STATE OF TEXAS 


ing and paying of warrants upon the Treasury shall not apply to 
officers of the National Guard of Texas, the National Guard Re¬ 
serve, the Officers Reserve Corps of the United States, nor to 
enlisted men of the National Guard, the National Guard Reserve, 
and the Organized Reserves of the United States nor to retired offi¬ 
cers of the United States Army, Navy, and Marine Corps, and re¬ 
tired warrant officers and retired enlisted men of the United States 
Army, Navy, and Marine Corps. 

Sec. 34. How Forts May Be Acquired by the United States. 
—The Legislature shall pass laws authorizing the Governor to 
lease, or sell to the government of the United States, a sufficient 
quantity of the public domain of the State necessary for the erec¬ 
tion of forts, barracks, arsenals, and military stations, or camps, 
and for other needful military purposes; and the action of the 
Governor therein shall be subject to the approval of the Legislature. 

Sec. 35. Laborers on Public Works to Be Protected. —The 
Legislature shall, at its first session pass laws to protect laborers on 
public buildings, streets, roads, railroads, canals, and other similar 
public works, against the failure of contractors, and sub-contractors 
to pay their current wages when due, and to make the corporation, 
company or individual for whose benefit the work is done respon¬ 
sible for their ultimate payment. 

Sec. 36. Payment of School Teachers Provided For. —The 
Legislature shall, at its first session, provide for the payment, or 
funding, as they may deem best, of the amounts found to be justly 
due to the teachers in the public schools, by the State, for service 
rendered prior to the first day of July 1873 and for the payment 
by the school districts in the State of amounts justly due teachers 
of public schools by such district to January 1876. 

Sec. 37. Mechanic’s Liens to Be Enforced.— Mechanics, ar¬ 
tisans and material men, of every class, shall have a lien upon the 
buildings and articles made or repaired by them for the value of 
their labor done thereon, or material furnished therefor; and the 
Legislature shall provide by law for the speedy and efficient en¬ 
forcement of said liens. 

Sec. 38. Commissioner of Insurance, Statistics and His¬ 
tory.— The Legislature may, at such time as the public interest 
may require, provide for the office of Commissioner of Insurance, 


THE CONSTITUTION OF THE STATE OF TEXAS 81 

Statistics and History, whose term of office duties and salary shall 
be prescribed by law. 

Sec. 39. Memorials of Texas History.— The Legislature may, 
from time to time, make appropriations for preserving and per¬ 
petuating memorials of the history of Texas, by means of monu¬ 
ments, statues, paintings and documents of historical value. 

Section 40. No person shall hold or exercise, at the same time, 
more than one Civil Office of emolument, except that of Justice of 
Peace, County Commissioner, Notary Public and Postmaster, Offi¬ 
cer of the National Guard, the National Guard Reserve, and the 
Officers Reserve Corps of the United States and enlisted men of the 
National Guard, the National Guard Reserve, and the Organized 
Reserves of the United States, and retired officers of the United 
States Army, Navy, and Marine Corps, and retired warrant officers, 
and retired enlisted men of the United States Army, Navy, and 
Marine Corps, unless otherwise specially provided herein. Pro¬ 
vided, that nothing in this Constitution shall be construed to pro¬ 
hibit an officer or enlisted man of the National Guard, and the 
National Guard Reserve, or an officer in the Officers Reserve 
Corps of the United States, or an enlisted man in the Organized 
Reserves of the United States; or retired officers of the United 
States Army, Navy, and Marine Corps, and retired warrant offi¬ 
cers, and retired enlisted men of the United States Army, Navy, 
and Marine Corps, from holding in conjunction with such office 
any other office or position of honor, trust or profit, under this 
State or the United States, or from voting at any Election; Gen¬ 
eral, Special or Primary, in this State when otherwise qualified. 

Sec. 41. Bribery of Certain Officials to Be Prohibited.— 
Any person who shall, directly or indirectly, offer, give, or promise, 
any money or thing of value, testimonial, privilege or personal ad¬ 
vantage, to any executive or judicial officer or member of the legis¬ 
lature to influence him in the performance of any of his public or 
official duties, shall be guilty of bribery, and be punished in such 
manner as shall be provided by law. And any member of the Legis¬ 
lature or Executive or Judicial Officer who shall solicit, demand 
or receive, or consent to receive, directly or indirectly, for himself, 
or for another, from any company, corporation or person, any 
money, appointment, employment, testimonial, reward, thing of 
value or employment, or of personal advantage or promise thereof, 
for his vote or official influence, or for withholding the same, or 


82 


THE CONSTITUTION OF THE STATE OF TEXAS 


with any understanding, expressed or implied, that his vote or offi¬ 
cial action shall be in any way influenced thereby, or who shall 
solicit, demand and receive any such money or other advantage 
matter or thing aforesaid for another, as the consideration of his 
vote or official influence, in consideration of the payment or prom¬ 
ise of such money, advantage, matter or thing to another, shall 
be held guilty of bribery, within the meaning of the Constitution, 
and shall incur the disabilities provided for said offenses, with a 
forfeiture of the office they may hold, and such other additional 
punishment as is or shall be provided by law. 

Sec. 42. Legislature May Provide for Inebriate Asylum. 
—The Legislature may establish an inebriate Asylum, for the cure 
of drunkenness and reform of inebriates. 

Sec. 43. No Exemptions From Public Service.— No man, or 
set of men, shall ever be exempted, relieved or discharged, from 
the performance of any public duty or service imposed by general 
law, by any special law. Exemptions from the performance of such 
public duty or service shall only be made by general law. 

Sec. 44. County Treasurer and Surveyor. —The Legislature 
shall prescribe the duties and provide for the election by the quali¬ 
fied voters of each county in this State of a county treasurer and 
a county surveyor, who shall have an office at the county seat, and 
hold their office for two years, and until their successors are quali¬ 
fied ; and shall have such compensation as may be provided by law. 

Sec. 45. Records of the History of Texas. —It shall be the 
duty of the Legislature to provide for collecting, arranging and 
safely keeping such records, rolls, correspondence, and other docu¬ 
ments, civil and military, relating to the history of Texas, as may 
be now in the possession of parties willing to confide them to the 
care and preservation of the State. 

Sec. 46. Militia to Be Organized. —The Legislature shall 
provide by law for organizing and disciplining the militia of the 
State, in such manner as they shall deem expedient, not incom¬ 
patible with the Constitution and Laws of the United States. 

Sec. 47. Scruples Against Bearing Arms. —Any person who 
conscientiously scruples to bear arms, shall not be compelled to do 
so, but shall pay an equivalent for personal service. 

Sec. 48. Laws to Remain in Force. —All laws and parts of 
laws now in force in the State of Texas, which are not repugnant 


83 


THE CONSTITUTION OF THE STATE OF TEXAS 

to the Constitution of the United States, or to this Constitution, 
shall continue and remain in force as the laws of this State, until 
they expire by their own limitation or shall be amended or repealed 
by the Legislature. 

Sec. 49. Exemptions From Forced Sales. —The Legislature 
shall have power, and it shall be its duty, to protect by law from 
forced sale a certain portion of the personal property of all heads 
of families, and also of unmarried adults, male and female. 

Sec. 50. Homestead Exemptions ; Incumbrances ; Pretended 
Sales. —The homestead of a family shall be, and is hereby pro¬ 
tected from forced sale, for the payment of all debts except for the 
purchase money thereof, or a part of such purchase money, the 
taxes due thereon, or for work and material used in constructing 
improvements thereon, and in this last case only when the work 
and material are contracted for in writing, with the consent of 
the wife given in the same manner as is required in making a sale 
and conveyance of the homestead; nor shall the owner, if a mar¬ 
ried man, sell the homestead without the consent of the wife, given 
in such manner as may be prescribed by law. No mortgage, trust 
deed, or other lien on the homestead shall ever be valid, except for 
the purchase money therefor, or improvements made thereon, as 
hereinbefore provided, whether such mortgage, or trust deed, or 
other lien, shall have been created by the husband alone, or to¬ 
gether with his wife; and all pretended sales of the homestead in¬ 
volving any condition of defeasance shall be void. 

Sec. 51. Homestead Defined. —The homsetead, not in a town 
or city, shall consist of not more than two hundred acres of land, 
which may be in one or more parcels, with the improvements 
thereon; the homestead in a city, town or village, shall consist of 
lot, or lots, not to exceed in value five thousand dollars, at the time 
of their designation as the homestead, without reference to the 
value of any improvements thereon; provided, that the same shall 
be used for the purposes of a home, or as a place to exercise the 
calling or business of the head of the family; provided also, that 
any temporary renting of the homestead shall not change the 
character of the same, when no other homestead has been acquired. 

Sec. 52. Descent of Homestead. —On the death of the hus¬ 
band or wife, or both, the homestead shall descend and vest in like 
manner as other real property of the deceased, and shall be gov- 


84 


THE CONSTITUTION OF THE STATE OF TEXAS 


erned by the same laws of descent and distribution, but it shall not 
be partitioned among the heirs of the deceased during the lifetime 
of the surviving husband or wife, or so long as the survivor may 
elect to use or occupy the same as a homestead, or so long as the 
guardian of the minor children of the deceased may be permitted, 
under the order of the proper court having the jurisdiction, to use 
and occupy the same. 

Sec. 53. Declaration Validating Process and Writs.— 
That no inconvenience may arise from the adoption of this Consti¬ 
tution, it is declared that all process and writs of all kinds which 
have been or may be issued and not returned or executed when this 
Constitution is adopted, shall remain valid, and shall not be, in any 
way, affected by the adoption of this Constitution. 

Sec. 54. Indigent Lunatics. —It shall be the duty of the Legis¬ 
lature to provide for the custody and maintenance of indigent 
lunatics, at the expense of the State, under such regulations and 
restrictions as the Legislature may prescribe. 

Sec. 55. Pensions. —The Legislature may provide annual pen¬ 
sions, not to exceed one hundred and fifty dollars per annum, to 
surviving soldiers or volunteers in the war between Texas and 
Mexico, from the commencement of the Revolution in 1835, until 
the first of January, 1837; and also to the surviving signers of the 
Declaration of Independence of Texas, and to the surviving 
widows continuing unmarried of such soldiers and signers; pro¬ 
vided, that, no such pension be granted except to those in indigent 
circumstances, proof of which shall be made before the County 
Court of the county where the applicant resides, in such manner 
as may be provided by law. 

Sec. 56. No Appropriation for Immigration. —The Legisla¬ 
ture shall have no power to appropriate any of the public money 
for the establishment and maintenance of a Bureau of Immiga- 
tion, or for any purpose of bringing immigrants to this State. 

Sec. 57. Land Set Aside for State Capitol.— Three millions 
acres of the public domain are hereby appropriated and set apart 
for the purpose of erecting a new State Capitol and other necessary 
public building at the seat of government, said lands to be sold 
under the direction of the Legislature; and the Legislature shall 
pass suitable laws to carry this section into effect. 


85 


THE CONSTITUTION OF THE STATE OF TEXAS 

Sec. 58. The Legislature shall have full power and authority to 
provide by law for the management and control of the Prison 
System of Texas; and to this end shall have power and authority 
to place the Prison System under the supervision, management 
and control of such trained and experienced officer, or officers, as 
the Legislature may from time to time provide for by law. 

Section 59. a— The conservation and development of all the 
natural resources of this State, including the control, storing, pres¬ 
ervation and distribution of its storm and flood waters, the waters 
of its rivers and streams, for irrigation, power and all other useful 
purposes, the reclamation and irrigation of its arid, semi-arid and 
other lands needing irrigation, the reclamation and drainage of its 
over-flowed lands, and other lands needing drainage, the conserva¬ 
tion and development of its roeste, water and hydroelectric power, 
the navigation of its inland and coastal waters, and the preserva¬ 
tion and conservation of all such natural resources of the State are 
each and all hereby declared public rights and duties; and the 
Legislature shall pass all such laws as may be appropriate thereto. 

(b) There may be created within the State of Texas, or the 
State may be divided into, such number of conservation and recla¬ 
mation districts as may be determined to be essential to the accom¬ 
plishment of the purposes of this amendment to the constitution, 
which districts shall be governmental agencies and bodies politic 
and corporate with such powers of government and with the au¬ 
thority to exercise such rights, privileges and functions concerning 
the subject matter of this amendment as may be conferred by law. 

(c) The Legislature shall authorize all such indebtedness as may 
be necessary to provide all improvements and the maintenance 
thereof requisite to the achievement of the purposes of this amend¬ 
ment, and all such indebtedness may be evidenced by bonds of such 
conservation and reclamation districts, to be issued under such 
regulations as amy be prescribed by law and shall also, authorize 
the levy and collection within such districts of all such taxes, 
equitably distributed, as may be necessary for the payment of the 
interest and the creation of a sinking fund for the payment of such 
bonds; and also for the maintenance of such districts and improve¬ 
ments, and such indebtedness shall be a lien upon the property 
assessed for the payment thereof; provided the Legislature shall 
not authorize the issuance of any bonds or provide for any indebt¬ 
edness against any reclamation district unless such proposition 


86 


THE CONSTITUTION OF THE STATE OF TEXAS 


shall first be submitted to the qualified property tax-paying voters 
of such district and the proposition adopted. 

Section 6o. That the Constitution of the State of Texas be so 
amended as to authorize a Texas Centennial, commemorating the 
heroic period of early Texas history, and celebrating a century of 
our independence and progress, to be held at such times, places and 
in such manner as may be designated by the Legislature of Texas. 

That the Legislature of Texas be authorized to make appropria¬ 
tion for the support and maintenance thereof; provided, that this 
authorization shall not be construed to make appropriations for 
any other future exposition or celebration of any kind or character. 


ARTICLE XVII. 

MODE OF AMENDING THE CONSTITUTION OF THIS STATE. 

Sec. i. How the Constitution Is to Be Amended. —The 
Legislature, at any biennial session, by a vote of two-thirds of all 
the members elected to each House, to be entered by yeas and nays 
on the journals, may propose amendments to the Constitution, to 
be voted upon by the qualified electors for members of the Legis¬ 
lature, which proposed amendments shall be duly published once 
a week for four weeks, commencing at least three months before 
an election, the time of which shall'be specified by the Legislature, 
in one weekly newspaper of each county, in which such a news¬ 
paper may be published; and it shall be the duty of the several 
returning officers of said election, to open a poll for, and make 
returns to the Secretary of State, of the number of legal votes cast 
at said election for and against said amendments; and if more than 
one be proposed, then the number of votes cast for and against 
each of them; and if it shall appear from said return, that a ma¬ 
jority of the votes cast, have been cast in favor of any amendment, 
the said amendment so receiving a majority of the votes cast, shall 
become a part of this Constitution, and proclamation shall be made 
by the Governor thereof. 


INDEX 


Administration, state, defects of, 76-80 
Administrative agencies, classification of, 74-76 
Administrative departments, under plan of reorganization, 83-86 
Amendments, constitutional, definition and methods, 18; general and 
special elections, 22; in Constitution of 1836, 6; in Constitution 
of 1845, 8; in Constitution of 1876, 16, 18-21; in Texas, 21-25; 
reasons for small vote and defeat of, 24-25; statistics, 21-22; vote 
cast on, 22-25 

Annexation to United States, 6 
Attorney-general, 71 

Auditor and efficiency expert, state, qualifications and duties of, 94; 
under'plan for reorganization, 83 

Ballot, long, 78 

Bill of rights, Constitution of 1869, quoted, 12 
Bill-drafting bureau, need for, 52 
Bills, steps in passage through Legislature, 46-48 
Board of control, 93 

Budget system, state, 93; local government, 97 

City manager government, see Council manager government 

Civil service, see Merit system 

Commission government, 164-165 

Comptroller of public accounts, 71-72 

Compulsory school attendance, in Constitution of 1869, 12 

Congress (Republic), 5 

Constitution, amendments to, of 1876, 21-25; text l< &76> Appendix; 
definition of, 1; in Texas history, 1-16; Mexican period, 1-2; 
of 1836, 4-6; of 1845, 6-9; of 1861, 9-10; of 1866, 10-11; of 1869, 
11-13; of 1876, 13-16 

Convention, constitutional, legal aspects of, 28-32; movement for, 25-28; 

not provided for by Texas, 18; problems before, 32-33 
Convention of 1845, 6 
Council manager government, 165-166 
Counties, powers of, 145-147 

County government, 145-159 5 auditor, 153 - 154 ; clerk of county court, 
152 ; commissioners’ court, 147 - 150 ; compensation of officials, 


ii 


INDEX 


i55 -i 56; county attorney, 151; county judge, 150-151; defects* 
in; 157; home rule in, 158-159; organization, 147-155; personnel, 
155; reform of, 157-158; relations between state and, 156-157; 
school trustees, 154; sheriff, 151; subdivisions of county, 155; 
superintendent of schools, 154; tax assessor, 152; tax collector, 

152-153; treasurer, 153 
“ County unit system,” 154-155 
Courts, see Judiciary 

Davis, E. J., administration, 12-13 
Debt, state and local, 96-99 
Declaration of Independence, 4 
Declaration of rights, Constitution of 1836, 6 
Duplication of work, 77-78 

Education, administration, 100-no; department of, reorganization, 109- 
no; history in Texas, 102-110; in Constitution of 1845, 8; in 
Constitution of 1866, n; in Constitution of 1869, 12 1 i* 1 Con¬ 
stitution of 1876, 15-16; state board of, duties, 108-109; state 
institutions, list of, 100 
Election laws, operation of, 133-141 
Executive cabinet, proposed, 83 
Executive officers, 54-72 
Expenditures, state, 87-89 

Financial administration, 89-99; expenditures, 87-89; financial adminis¬ 
tration and control, 92-96; proposed plan of organization, 95-96; 
state and local indebtedness, 96-99; revenues and tax administra¬ 
tion, 89-92; weaknesses of, 76-77, 94-95 

Government, Texas, history, 1-16; Constitution of 1836, 4-6; Constitu¬ 
tion of 1845, 6-9; Constitution of 1861, 9-10; Constitution of 
1866, 10-11; Constitution of 1869, 11-13; Constitution of 1876, 
13-16; Mexican period, 1-2 

Governor, compensation of, 56; lack of power, 76; powers of, adminis¬ 
trative: financial powers, 61-62, police powers, 62-63, power of 
appointment, 58-59, power of removal, 59-61, power of super¬ 
vision, 59; powers of, legislative: control over organization and 
sessions of Legislature, 63-64, messages, 64-65, veto power, 65-67 ; 
qualifications, 55; relation, ideal, to Legislature, 53; removal and 
succession of, 56-57; special functions: military power, 67-68, 
miscellaneous, 69, pardoning power, 68-69, power as head of 
state, 69; term of, 55; under plan for reorganization, 82-83 

Habeas corpus, Constitution of 1869, 14; Constitution of 1876, 14 
Home rule amendment, municipal, quoted, 160-161 


INDEX iii 

Home rule, in cities, 160-163; in counties, 158-159 
Homesteads, exemption from taxation, 89-90 

Judiciary (Republic), 5; administrative judicial districts, 114-115; Ad¬ 
visory Civil Judicial Council, 117; Commission of Appeals, 112; 
Commission of Appeals for Court of Criminal Appeals, 113; 
Constitution of 1845, 71 county courts, 115-116; Court of Crimi¬ 
nal Appeals, 112-113; court procedure, 119-120; courts of civil 
appeals, 113; criticism of present system, 118-121; district courts, 
114; justices’ courts, 116-117; organization, 118-121; personnel, 
120-121; personnel, plan for improvement of, 126-128; procedure, 
plan for reform, 125-126; prosecuting officers, 117; reform, 
movement for, 121-123; reorganization, plan for, 123-125; Su¬ 
preme Court, in-112 

Land office, commissioner of, 72 
League of Texas Municipalities, 169 

Legislative reference bureau, 52; under plan for reorganization, 83 
Legislature, 34-53; apportionment and representation, 35-37; committee 
system in, 48-49; committee work perfunctory, 51; compensation 
of members, 38-39; House of Representatives, 37; limitations 
on, 43-44; members, inexperience of, 49-50; need for delibera¬ 
tion, 50-51; need for leadership, 50; powers of, 40-43; procedure 
in, 44-49; qualifications of members, 37-38; Senate, 37; sessions, 
length and method of procedure, 38-39; speaker of House, pow¬ 
ers of, 45; special sessions, 39-40; suggestions for reform of, 
49-53 

Lieutenant-governor, 70; under plan for reorganization, 83 
Lobby, need for control of, 51-52 

Mayor-council government, 166-167 

Merit system, cities, 167-168; lack of, 78-79; Tarrant County, 155 
Municipal government, 159-169; central control of, 168-169; personnel 
of, 167-168 

Municipal liability, 163-164 
Municipal organization, 164-167 

Organization and Economy, Joint Legislative Committee on, analysis 
of defects of financial administration, 95; Committee organized, 
81; plans for reorganization of financial administration, 95-96 
Overlapping of functions, 77-78 

Political parties, 129-144; campaign machinery and funds, 139-140; 
committees, 136-138; conventions, 138-139; defects in Texas, 
142-143; history in Texas, 129-130; legal status, 144; nominating 


IV 


INDEX 


methods, 130-132; primaries, 134-136; primary election contests, 
141 

President (Republic), powers of, 5 
Religion in Constitution of Mexican period, 2 

Reorganization of state administration, movement for, 80-81; plan for, 
82-86; plan for financial administration, 95-96, 99; results to be 
expected from, 86 

Reporting system, unsatisfactory, 78 
Revenue, state, 89-92 

Revision, constitutional, definition and methods, 18 

Salaries, low, paid to state officials, 79-80 
Secretary of state, 70-71 

Slavery in Constitution of Mexican period, 2; in Constitution of 1836, 
5; in Constitution of 1845, 8; in Constitution of 1861, 9; in Con¬ 
stitution of 1866, 10 
Suffrage, 132-133 

Tarrant County Civil Service Act, 155 
Tax administration, 91-92 

Tax Survey Committee, recommendations of, 95 
Terms of office, short, 79 

Treasurer, 72; under plan of reorganization, 84 
University of Texas, in Constitution of 1876, 16 
Voting machine in House of Representatives, 47 


pppmppBWPRM'i 

















































































































